Here & Now

Mike Wittenwyler Explains Campaign Finance Ruling

Frederica Freyberg:

But first, a federal appeals court Wednesday found much of Wisconsin’s campaign finance law violates 1st Amendment protections. The case was filed by Wisconsin's Right to Life, which objected to the portion of the law that placed rules on issue advocacy, in which groups express political opinions but don’t advocate for or against specific candidates. The court also found that Wisconsin oversteps its bounds in banning spending by corporations and for setting limits on how much could be raised by affiliated political committees. Mike Wittenwyler is an attorney with Godfrey Kahn and a campaign finance law specialist. Thanks for being here.

Mike Wittenwyler:

Thank you for having me.

Frederica Freyberg:

So I slogged through this 88-page decision, and the judge herself wrote that Wisconsin’s campaign finance system is labyrinthian and difficult to decipher without a background in this area of law. So here you are. Thank you for being here with your background in this area of law. Decipher for us how much this decision changes current law in Wisconsin.

Mike Wittenwyler:

Well, practically, it doesn’t really change much. I mean, that’s the interesting thing about the decision, is it really only changes one item. And the reason for that is the Government Accountability Board hasn’t been enforcing the parts of the law that the court found unconstitutional. So practically it doesn’t change anything except one aspect dealing with the reporting of expenditures.

Frederica Freyberg:

Tell us what that means to the playing field.

Mike Wittenwyler:

What it does is is it requires the Government Accountability Board to go back and come up with a separate system for how one reports independent expenditures. So after Citizens United, the US Supreme Court decision in 2010, US Supreme Court said corporations could sponsor communications that told you how to vote for or against a candidate. The legislature didn’t change the law, so the GAB on its own had to come up with a system for how to deal with these communications. That’s what the court said was too onerous. So they have to come up with a system for dealing with those communications that’s less burdensome to the speaker.

Frederica Freyberg:

And in fact they called it, the court, a dizzying array of statutes and rules, but vague and over-broad. Is that the part of it that they’re talking about?

Mike Wittenwyler:

Correct. And it really is the confusion aspect of it that I think the court was more concerned about, is that you couldn’t just pick it up and say, oh, now I know what to do. You had to go from A to B to C to D to kind of get a picture of what the rules are that you have to comply with.

Frederica Freyberg:

This campaign finance law itself was passed in 1971, right?

Mike Wittenwyler:

The overall Chapter 11, the state statute that regulates campaign finance, right.

Frederica Freyberg:

So how different is it from that now?

Mike Wittenwyler:

Vastly different. So one way to think about this is what was the practical effect of the decision? And the practical effects was, you know, you have one provision that the GAB has to go back and look at and figure out what they’re going to do. The overall message though of the court is is that if someone comes in, steps off the street, picks up state law to try to figure out what is and isn’t regulated, it’s extremely difficult to do because of what you just said. It was adopted in the early 1970s, and in the last 40 years you’ve had dozens of court decisions that have changed it. And so the average Joe can’t figure out what state law is without talking to the Government Accountability Board, talking to an attorney, reading advisory opinions, reading guidance things, reading rules. It’s a mishmash of guidance.

Frederica Freyberg:

So it’s expected to go back to the legislature then, to clean that up?

Mike Wittenwyler:

It is. I mean, that’s– Obviously, that’s the aspiration and what the court suggests would be the most sound thing to do. Obviously, a court can’t dictate a legislature to do that, but I mean obviously, they feel that in order for people to be able to speak in this area, they need clear guidance as to what the laws are. And only people who can clarify those laws would be the state legislature.

Frederica Freyberg:

What do you make of critics of this ruling who say that the decision will mean corruption, undue influence from special interests, and lack of transparency about who’s putting out these election messages?

Mike Wittenwyler:

I think that it’s an assumption on their part that the legislature– I mean, it’s a disagreement with, one, the court over how far the legislature can go in what it would do in adopting a statute. That their concern is is that the legislature will not go far enough because they’re worried the court would overturn too extensive of a disclosure provision. But there’s also an assumption on their part that the legislature won’t step in and adopt, I guess, the laws that they’re looking for to have adopted.

Frederica Freyberg:

When we talk about spending, campaign spending, campaign finance, we mostly think of big-time spending in television ads, right? But it’s your premise, I understand, that it’s going to change a lot.

Mike Wittenwyler:

My premise is is that it already has changed a lot. I mean, I’ve been doing this– I’ve been in politics for 20 plus years, but I’ve been doing the lawyering of it for the last 15, and I’ve seen– You know, how I just go about– Number one, what I approve has changed from all broadcast ads to now I review blog entries, websites, emails, things like that, where the cost is significantly lower. And I think people who look at, you know, how– What it takes to get a voice in the process now, the cost has shifted and changed dramatically, that the barriers to entry that used to be there to communicate with people just don’t exist anymore.

Frederica Freyberg:

And yet do the same rules apply to social media?

Mike Wittenwyler:

They do. They do and they don’t. Generally campaign finance laws have taken a broad exception to activity on the internet. And the reason is is because regulators are less concerned about it, because there isn’t the spectrum. If you get into how broadcast regulation works, it’s because we have a limited spectrum and that doesn’t exist with internet. And the other is we don’t want to– Most of these people are uncompensated volunteers, and so we don’t want to stop an enthusiastic supporter from putting up a website.

Frederica Freyberg:

Is the 1st Amendment itself keeping pace with the changing world?

Mike Wittenwyler:

In my view, very much so. I mean, I think that if you look at the US Supreme Court decisions during the last five years, whether it’s from dogfighting video– Or what were they, dogfighting videos we can now have, to violent video games, to whatever they may be, the Supreme Court has been erring on the side of more speech, not less, in every arena, not just the political arena.

Frederica Freyberg:

All right. We need to leave it there. Mike Wittenwyler, thanks very much.

Mike Wittenwyler:

Thank you.

Frederica Freyberg:

It remains to be seen how the decision will affect the ongoing John Doe investigation.