Wisconsin Realtors Ass'n v. Ponto
| Decision Date | 11 December 2002 |
| Docket Number | No. 02-C-424-C.,02-C-424-C. |
| Citation | 233 F.Supp.2d 1078 |
| Court | U.S. District Court — Western District of Wisconsin |
| Parties | WISCONSIN REALTORS ASSOCIATION, Wisconsin Education Association Council, Wisconsin Manufacturers and Commerce, Wisconsin Grocers Association, Wisconsin Builders Association, Wisconsin Broadcasters Association (Seventh Claim for Relief), Wisconsin Farm Bureau Federation, Realtors-PAC, WEAC-PAC, WMC Issues Mobilization Council, Inc., all for themselves and their individual members including David L. Mays, Thomas A. Bindl and Tamara Schindler, Plaintiffs, v. Steven V. PONTO, chairperson of the Wisconsin State Elections Board; and each of its members, Daniel D. Blinka, David Halbrooks, Patrick J. Hodan, Brenda Lewison, John P. Savage, John C. Schober, Jeralyn Wendelberger and Kevin J. Kennedy, its executive director; Jack C. Voight, State Treasurer of Wisconsin; and Richard G. Chandler, secretary of the Wisconsin Department of Revenue, each in his or her official capacity, Defendants. |
Brady C. Williamson, La Follette, Godfrey & Kahn, S.C., Madison, WI, for Plaintiffs Thomas A. Bindl, David L. Mays, Realtors-PAC, Tamara Schindler, WEAC-PAC, Wisconsin Broadcasters Association, Wisconsin Builders Association, Wisconsin Education Association, Wisconsin Farm Bureau Federation, Wisconsin Grocers Association, Wisconsin Manufacturers and Commerce, Wisconsin Realtors Association, WMC Issues Mobilization Council.
Marilyn Mohrman-Gillis, Washington, DC, for Plaintiffs Association of Public Television, National Educational Telecommunication.
Wilbur Hinton, Columbia, SC, for Plaintiff Organization of State Broadcasting.
William J. Mulligan, Davis & Kuelthau, S.C., Milwaukee, WI, for Defendants Daniel D. Blinka, Richard G. Chandler, David Halbrooks, Patrick J. Hodan, Kevin J. Kennedy, Brenda Lewison, Steven V. Ponto, John P. Savage, John C. Schober, Jack C. Voight, Jeralyn Wendelberger.
This is a civil action for injunctive and declaratory relief brought pursuant to 42 U.S.C. § 1983. Jurisdiction is present. 28 U.S.C. § 1331. Plaintiffs contend that several provisions of Wisconsin's new campaign finance law are unconstitutional and have moved for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c). Although in their complaint plaintiffs challenge eight individual provisions of the new law, their Rule 12 motion is limited to three provisions. Two of these relate to advertisements featuring candidates for public office that appear in close proximity to state elections. They are part and parcel of an overarching legislative scheme for reforming the financing of state election campaigns and are subject to a sweeping non-severability clause. Accordingly, if either provision is struck down on constitutional grounds, the entire reform package is void with one exception. The third provision requires the promulgation of rules obligating public broadcasters to provide free air time to state candidates. This provision is not subject to the non-severability clause and for that reason, its fate is not linked to the constitutionality of any other statutory provision. Rather, it must stand or fall according to its own legal merits.
I conclude that plaintiffs have not shown the facial unconstitutionality of the new law's provisions imposing certain disclosure requirements and prohibiting the use of corporate treasury funds on communications featuring a candidate within 60 days of an election. As it stands, the record is not sufficiently developed to make such a determination. However, plaintiffs are entitled to judgment on the pleadings on their challenge to the constitutionality of the new law's provision requiring prior disclosure of communications featuring a candidate within 30 days of an election. That provision flatly prohibits any independent group from mentioning a candidate within 30 days of an election if the group has not disclosed to the government its intentions to do so no later than the 31st day before the election. This provision is not supported by a significant government interest and is not narrowly tailored, rendering it incompatible with the First Amendment. By virtue of the new law's non-severability clause, this provision's constitutional infirmity renders nearly all the new law's campaign finance provisions void, including the provisions regulating communications appearing within 60 days of an election and the other provisions that plaintiffs have challenged in this suit but that are not at issue on their motion for judgment on the pleadings. Finally, I conclude that federal law does not preempt the new law's public broadcasting provision, which is not subject to the non-severability clause, and that I cannot hear plaintiffs' First Amendment challenge to the requirement that the Elections Board promulgate rules requiring public broadcasters to provide a minimum amount of free air time to state candidates because it is not ripe for judicial review.
For the sole purpose of deciding plaintiffs' motion, I find from the pleadings that plaintiffs have alleged the following facts.
On July 26, 2002, Governor Scott McCallum signed into law a state budget bill, 2001 Wisconsin Act 109. The bill contained numerous provisions concerning the financing of state election campaigns. The effective date of the new campaign finance provisions is July 1, 2003. This action challenges several of those provisions and the changes they wrought in Wisconsin's campaign finance law.
Plaintiffs are organizations, individual members of those organizations and two political action committees connected with the organizations that are active in Wisconsin politics. Organizational plaintiffs Wisconsin Realtors Association, Wisconsin Education Association Council, Wisconsin Manufacturers and Commerce, Wisconsin Grocers Association, Wisconsin Builders Association and Wisconsin Farm Bureau Federation each take public positions on issues of public interest and concern, including publicly endorsing or opposing candidates for state office. In addition, some plaintiffs periodically spend corporate funds to purchase broadcast and other advertising to express their positions on public issues and to comment publicly on candidates for state public office. The individual plaintiffs are members of the plaintiff organizations and are citizens, taxpayers and voters. Plaintiff David L. Mays is a realtor and a member of plaintiff Wisconsin Realtors Association's public policy committee. Plaintiffs Thomas A. Bindl and Tamara Schindler are teachers and members of plaintiff WEAC-PAC's board. As members of the plaintiff organizations, the individual plaintiffs associate with other citizens who share their positions on public issues and candidates and, through the plaintiff organizations, express their collective opinion on matters of public interest and concern, including candidates for state public office. Plaintiffs WEAC-PAC and Realtors-PAC are political action committees registered with the state of Wisconsin. Plaintiff WMC Issues Mobilization Council, Inc. is a non-stock Wisconsin corporation organized under section 501(c)(4) of the Internal Revenue Code. It was formed to advance a business agenda through issue advocacy communication on behalf of plaintiff Wisconsin Manufacturers and Commerce and its members. Plaintiff Wisconsin Broadcasters Association is composed of individuals, partnerships and other entities and was formed to advance the interests of radio and television broadcast stations in the state. It challenges only the free air time public broadcast provisions at issue in this litigation.
Defendant Steven V. Ponto is chairperson of the Elections Board of the state of Wisconsin. Defendants Daniel D. Blinka, David Halbrooks, Patrick J. Hodan, Brenda Lewison, John P. Savage, John C. Schober and Jeralyn Wendelberger are members of the Elections Board. Defendant Kevin J. Kennedy is the Election Board's executive director and, pursuant to Wis. Stats. § 5.05(1)(a), is the state's chief election officer. The Elections Board has general authority over and responsibility for administering the state's laws relating to elections and election campaigns. Defendant Jack C. Voight is Wisconsin Treasurer and is charged under the new law with overseeing the distribution of funds to candidates under the state's public financing program both directly and through the Republican Party of Wisconsin, the Democratic Party of Wisconsin and the Elections Board. Defendant Richard G. Chandler is Secretary of the Wisconsin Department of Revenue and is responsible for collecting funds that will be transferred to candidates participating in the public financing program through the Wisconsin Election Campaign Fund. Chandler is also responsible for overseeing the implementation and administration of the campaign fund tax check-off.
Section 1ucj of the Act creates a new statutory section, Wis. Stat. § 11.12(6)(am), that imposes registration and reporting requirements on certain committees that make disbursements in excess of $250 cumulatively for communications that are for a "political purpose." Section 1ty of the Act amends the definition of "political purpose" found in Wis. Stat. § 11.01(16)(a) to include a "communication ... that is made during the period beginning on the 60th day preceding a general, special, or spring election and ending on the date of that election and that includes a reference to or depiction of a clearly identified candidate...." In addition, Wis. Stat. § 11.01(7) ties the definition of "disbursement" to the definition of "political purpose" and Wis. Stat. § 11.38 provides that no "foreign or domestic corporation, or association ... may make any ... disbursement, directly or indirectly, either independently or through any political party, committee, group, candidate or individual for any purpose other than to promote...
To continue reading
Request your trial
-
Louk v. Cormier
...statute); Alaska Airlines, Inc. v. City of Long Beach, 951 F.2d 977, 988 (9th Cir.1991) (same); Wisconsin Realtors Ass'n v. Ponto, 233 F.Supp.2d 1078, 1093 (W.D.Wis.2002) (same); Scinto v. Kollman, 667 F.Supp. 1106, 1109 (D.Md.1987) (same); Schafer v. Vest, 680 P.2d 1169, 1170 (Alaska 1984)......
-
Wis. Right to Life, Inc. v. Barland
...political-committee status and the full range of proscriptions and prescriptions in Chapter 11. Wis. Realtors Ass'n v. Ponto (“Wis. Realtors II”), 233 F.Supp.2d 1078, 1083–84 (W.D.Wis.2002) (quoting 2001 Wis. Act 109 § 1 ty ). This expansion of the regulatory system was not designed to stic......
-
McConnell v. Fed. Election Comm'n, 02–582 CKK,KLH,RJL
...to restrictions merely on the time, place, or manner of expression.") (citations omitted); Wisconsin Realtors Ass'n v. Ponto, 233 F.Supp.2d 1078, 1091 (W.D.Wis.2002) (subjecting Wisconsin statute's prior reporting requirements to "time, place, or manner of expression" analysis); FEC Opp'n a......
-
McConnell v. Federal Election Commission
...future congressional action directed toward express 251 F. Supp. 2d 598 and issue advocacy. See Wisconsin Realtors Ass'n v. Ponto, 233 F.Supp.2d 1078, 1085 (W.D.Wis.2002) ("I am not convinced that Buckley was intended to work such a significant inhibition on future legislative efforts to ad......