Wisconsin Right to Life Inc et al v. Myse et al

Filing 132

Declaratory Judgment and Permanent Injunction Following the Seventh Circuit Remand in Wisconsin Right to Life, Inc. v. Barland (Barland-II) signed by Judge Charles N Clevert, Jr on 1/30/15. (cc: all counsel)((cef), C. N. Clevert, Jr.)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

WISCONSIN RIGHT TO LIFE, INC., and
WISCONSIN RIGHT TO LIFE STATE
POLITICAL ACTION COMMITTEE,
Plaintiffs
V.

Case No. 10-C-0669

THOMAS BARLAND, in his official capacity
as chair and member of the Wisconsin
Government Accountability Board;
HAROLD FROEHLICH, in his official capacity as
vice chair and member of the Wisconsin
Government Accountability Board;
JOHN FRANKE, ELSA LAMELAS,
GERALD NICHOL, and TIMOTHY VOCKE, in their
official capacities as members of the Wisconsin
Government Accountability Board; and
JOHN CHISHOLM, in his official capacity
as Milwaukee County District Attorney,
Defendants.

DECLARATORY JUDGMENT AND PERMANENT INJUNCTION
FOLLOWING THE SEVENTH CIRCUIT REMAND IN
WISCONSIN RIGHT TO LIFE, INC. V. BARLAND (“BARLAND-II”)1
Plaintiffs Wisconsin Right to Life, Inc. (“WRTL”) and Wisconsin Right to Life State
Political Action Committee (“WRTL-SPAC”) filed this action challenging the constitutionality
of Wisconsin law.
Defendants are Thomas Barland, in his official capacity as chair and member of the
Wisconsin Government Accountability Board (“GAB”); Harold Froehlich, in his official
capacity as vice chair and member of GAB; John Franke, Elsa Lamelas, Gerald Nichol,
1

751 F.3d 804, Nos.12-2915/12-3046/12-3158 (7th Cir. May 14, 2014).

and Timothy Vocke, in their official capacities as members of GAB; and John Chisholm,
in his official capacity as Milwaukee County District Attorney.
The court enters the following declaratory judgment and permanent injunction
pursuant to Barland-II.
***
Defendants shall immediately and conspicuously post, on the homepage of GAB’s
website, valid hyperlinks to file-stamped copies of Barland-II2 and this order, both of which
the public shall be able to access free of charge. Defendants shall do the same for
Wisconsin Right to Life State Political Action Committee v. Barland (“Barland-I”),3 the
Seventh Circuit’s previous opinion in this action.

Valid hyperlinks shall remain

conspicuously on GAB’s homepage for four years4 after official publication of legislation
and GAB rules – whichever is later – bringing Wisconsin law into compliance with Barland-I
and Barland-II.
***
First, Wisconsin bans corporations such as WRTL from making disbursements.5
The court grants declaratory judgment and permanently enjoins Defendants from
administering or civilly enforcing Wisconsin’s corporate-disbursement ban against any

2

Thus, for the public’s convenience, this order includes both F.3d cites and slip-op. cites.

3

664 F.3d 139, No.11-2623 (7th Cir. Dec. 12, 2011) .

4

Two state-election cycles and one gubernatorial-election cycle.

5

W IS . S TAT . § 11.38(1)(a)1.; Barland-II, 751 F.3d at 816, slip op. at 22.

2

person,6 or criminally investigating or prosecuting (or referring for investigation or
prosecution)7 any person under this ban, because the ban is facially unconstitutional.8
Second, Wisconsin law triggers what Citizens United v. FEC9 recognizes are
political-committee and political-committee-like burdens for WRTL when it engages in its
speech. These burdens are (1) registration,10 (2) recordkeeping,11 and (3) periodic12
reporting,13 and Wisconsin triggers them in multiple ways.

6

Including “person” as defined in W IS . S TAT . § 990.01(26). Throughout this order, “person” includes a
com bination of two or m ore persons.

7

See, e.g., O’Keefe v. Chisholm, 769 F.3d 936, 937 (7th Cir. 2014) (dism issing “a judicially supervised
crim inal investigation into the question whether certain persons have violated the state’s cam paign-finance
laws”); id. (“The ongoing crim inal investigation is being supervised by a judge, in lieu of a grand jury. W is.
Stat. § 968.26. Prosecutors in W isconsin can ask the state’s courts to conduct these inquiries, which go by
the nam e ‘John Doe proceedings’ because they m ay begin without any particular target. The District Attorney
for Milwaukee County[, a Defendant in this action,] m ade such a request”); id. at 938 (“W isconsin’s
Governm ent Accountability Board, [whose m em bers are Defendants in this action and] which supervises
cam paigns and conducts elections, likewise called for an investigation. District Attorneys in four other
counties m ade sim ilar requests.”).

8

Barland-II, 751 F.3d at 831, 843, slip op. at 55, 83. To be clear: The ban in W IS . S TAT . § 11.38(1)(a)1. on
direct and indirect contributions that corporations m ake is not at issue in Barland-II, so the court issues no
holding on, and expresses no opinion on, the constitutionality of this ban.

9

558 U.S. 310, 337-38 (2010).

10

W IS . S TAT . §§ 11.05 (registration), 11.10(3) (treasurer), 11.12(1) (sam e), 11.14 (bank account), 11.16(1),
(3) (treasurer and bank account), 11.19 (term ination); W IS . A D M IN . C O D E §§ GAB 1.28(2) (“the applicable
requirem ents of Ch. 11, Stats.”), GAB 1.91(3) (bank account, treasurer, and registration), GAB 1.91(4), (6)
(registration), GAB-1.91(8) (citing W IS . S TAT . § 11.19 (term ination)).

11

W IS . S TAT . § 11.12(3); GAB 1.28(2) (“the applicable requirem ents of Ch. 11, Stats.”), GAB 1.91(8) (citing
W IS . S TAT . § 11.12, which includes recordkeeping requirem ents in § 11.12(3)).

12

FEC v. Mass. Citizens for Life, Inc., 479 U.S. 238, 255 (1986) (“MCFL”).

13

W IS . S TAT . §§ 11.06, 11.12(4), 11.20; GAB 1.28(2) (“the applicable requirem ents of Ch. 11, Stats.”); GAB
1.91(8) (citing a subset of political-com m ittee reporting requirem ents).

3

One way is through Wisconsin’s statutory political-purposes definition,14 which
turns on what is for the “purpose of influencing” elections.15 This definition is part of
Wisconsin’s statutory contribution and disbursement definitions.16

These statutory

contribution and disbursement definitions are part of Wisconsin’s statutory committee-orpolitical-committee definition.17 This committee-or-political-committee definition “triggers”
political-committee burdens.18
Meanwhile, Wisconsin’s regulatory political-committee definition19 also turns on
what is “to influence elections” and “triggers” political-committee burdens.20
Because they turn on what influences elections, Wisconsin’s statutory politicalpurposes definition and Wisconsin’s regulatory political-committee definition are
unconstitutionally vague under Buckley v. Valeo.21
Therefore, to resolve this vagueness “[a]s applied to political speakers other than
candidates, their campaign committees, and political parties, the [statutory politicalpurposes and regulatory political-committee] definitions are limited to express advocacy

14

W IS . S TAT . § 11.01(16); Barland-II, 751 F.3d at 815, slip op. at 20.

15

W IS . S TAT . § 11.01(16); Barland-II, 751 F.3d at 815, 833, slip op. at 20, 59.

16

W IS . S TAT . § 11.01(6), (7); Barland-II, 751 F.3d at 815, slip op. at 19.

17

W IS . S TAT . § 11.01(4); Barland-II, 751 F.3d at 812, slip op. at 12-13.

18

Barland-II, 751 F.3d at 812, 815, 832, slip op. at 13, 19, 59.

19

GAB 1.28(1)(a); Barland-II, 751 F.3d at 826, slip op. at 43 .

20

Barland-II, 751 F.3d at 826, slip op. at 43.

21

424 U.S. 1, 77 (1976). Barland-II, 751 F.3d at 833, 843-44, slip op. at 60, 83.

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and its functional equivalent as those terms were explained in Buckley” and FEC v.
Wisconsin Right to Life, Inc.22 As applied to such speakers, this law reaches no further
than “express advocacy and its functional equivalent as those terms were explained in
Buckley” and WRTL-II.23
The court therefore grants declaratory judgment and permanently enjoins
Defendants from administering or civilly enforcing Wisconsin’s statutory politicalpurposes definition and Wisconsin’s regulatory political-committee definition against
any person, or criminally investigating or prosecuting (or referring for investigation or
prosecution) any person under this law, in any way inconsistent with the previous
paragraph.
Third, another way in which Wisconsin triggers political-committee-like burdens is
through GAB 1.28(3)(b).
The second of two sentences in GAB 1.28(3)(b) turns on what “[s]upports or
condemns” candidates’ positions on issues, stances on issues, and public records.24
Because “[s]upports or condemns” is unconstitutionally vague,25 the court grants
declaratory judgment and permanently enjoins Defendants from administering or civilly
enforcing the second of two sentences in GAB 1.28(3)(b) against any person, or

22

551 U.S. 449 (2007) (“W RTL-II”). Barland-II, 751 F.3d at 844, slip op. at 83.

23

Citizens United v. FEC re-labels “the functional equivalent of express advocacy” as the “‘appeal to vote’
test.” 558 U.S. 310, 335 (2010) (quoting W RTL-II, 551 U.S. at 470).

24

Barland-II, 751 F.3d at 826, slip op. at 45.

25

Id. at 837-38, 843-44, slip op. at 70-71, 83.

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criminally investigating or prosecuting (or referring for investigation or prosecution) any
person under this sentence.
However, the court holds the first of two sentences in GAB 1.28(3)(b)26 is not
unconstitutionally vague.27
Fourth, Wisconsin triggers political-committee and political-committee-like burdens
not only through the statutory committee-or-political-committee definition28 and GAB 1.2829
but also through GAB 1.91.30
To resolve as-applied and facial overbreadth31 challenges – as opposed to asapplied and facial vagueness challenges – Buckley holds that government may trigger
political-committee or political-committee-like burdens only for “organizations” that (a) are
“under the control of a candidate” or candidates in their capacities as candidates, or (b)
have the “the major purpose” of express advocacy under Buckley.32
Referring to organizations that are not under the control of any candidate(s) in their
capacities as candidates, Barland-II holds that Wisconsin may trigger political-committee

26

27

Id. at 826, slip op. at 45.
Id. at 838, slip op. at 71 .

28

W IS . S TAT . § 11.01(4); Barland-II, 751 F.3d at 812, slip op. at 12-13.

29

Barland-II, 751 F.3d at 826, slip op. at 43-45.

30

Id. at 839-40, 844-46, slip op. at 74, 84-86.

31

Id. at 839, slip op. at 72.

32

424 U.S. at 79, followed in MCFL, 479 U.S. at 252 n.6, 262, and McConnell v. FEC, 540 U.S. 93, 170 n.64
(2003).

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or political-committee-like burdens33 only for organizations that have the “major purpose”
of “express advocacy.”34
The court therefore grants declaratory judgment and permanently enjoins
Defendants from administering or civilly enforcing the statutory committee-or-politicalcommittee definition, GAB 1.28, and GAB 1.91 against any person, or criminally
investigating or prosecuting (or referring for investigation or prosecution) under these laws
any person, in any way inconsistent with the previous two paragraphs.
Fifth, WRTL-SPAC – not WRTL – challenges Wisconsin’s regulatory attribution and
disclaimer requirements35 as applied to WRTL-SPAC’s thirty-second radio ads, saying the
requirements take up most of the thirty seconds and distract the listeners from WRTLSPAC’s message.

The court holds that Wisconsin’s regulatory attribution and

disclaimer requirements are overbroad as applied to radio speech of thirty seconds or
fewer.36 The court grants declaratory judgment and permanently enjoins Defendants from
administering or civilly enforcing these requirements against any person, or criminally
investigating or prosecuting (or referring for investigation or prosecution) any person under
these requirements, for radio speech of thirty seconds or fewer.

33

W isconsin has no non-political-com m ittee reporting requirem ents. See Barland-II, 751 F.3d at 841-42, slip
op. at 77-80.

34

Id. at 834, 839, 841, 842, 844, slip op. at 62, 72-73, 77, 79-80, 84.

35

W IS . A D M IN . C O D E § G AB 1.42(5) (“GAB 1.42”); Barland-II, 751 F.3d at 816, slip op. at 21. Barland-II
correctly understands the difference between an “attribution” and a “disclaim er[.]” 751 F.3d at 815-16, slip
op. at 21.

36

Id. at 832, 843, slip op. at 57-59, 83.

7

Sixth, WRTL-SPAC’s purely official-capacity challenge to Wisconsin’s twenty-fourhour reporting requirements37 is moot, because Wisconsin amended the law in 2014,
after the Seventh Circuit oral argument in Barland-II and before the Seventh Circuit opinion
in Barland-II, and changed twenty-four-hour reporting to forty-eight-hour reporting.38
Seventh, the court upholds Wisconsin’s oath-for-independent-disbursements
requirement,39 which WRTL-SPAC also challenged.
Eighth, WRTL and WRTL-SPAC challenged Wisconsin’s limit on what organizations
spend to solicit contributions to their own political committees40 as applied to WRTL and
WRTL-SPAC, because WRTL-SPAC engages in only independent spending for political
speech. However, Barland-II strikes the limit facially.41 The court grants declaratory
judgment and permanently enjoins Defendants from administering or civilly enforcing
Wisconsin’s limit on what organizations spend to solicit contributions to their own
political committees42 against any person, or criminally investigating or prosecuting (or
referring for investigation or prosecution) any person under this law.
***
37

W IS . S TAT . § 11.12(5)-(6); Barland-II, 751 F.3d at 842-43, slip op. at 80-81.

38

Barland-II, 751 F.3d at 842-43, slip op. at 80-81 .

39

W IS . S TAT . § 11.06(7); GAB 1.42(1); Barland-II, 751 F.3d at 843, slip op. at 82.

40

W IS . S TAT . § 11.38(1)(a)3.; Barland-II, 751 F.3d at 816, slip op. at 22.

41

Barland-II, 751 F.3d at 831, 844, slip op. at 56-57, 83 .

42

Although W RTL and W RTL-SPAC also challenged a corresponding provision, W IS . S TA T . § 11.38(1)(b),
Barland-II addresses only § 11.38(1)(a)3. 751 F.3d at 831, slip op. at 56-57. Because § 11.38(1)(a)3 lim its
what organizations spend to solicit contributions for their own political com m ittees, and because § 11.38(1)(b),
inter alia, bans political com m ittees from accepting what § 11.38(1)(a)3 disallows, the facial holding on
§ 11.38(1)(a)3 provides the necessary relief here. Cf. id.

8

SO ORDERED this 30th day of January 2015.
BY THE COURT
/s/ C.N. Clevert, Jr.
C.N. CLEVERT, JR.
U.S. DISTRICT JUDGE

9