Closed Loophole Remains Open

More than three years ago, the retired judges who serve on the state Government Accountability Board acted unanimously to close a gaping loophole in Wisconsin's disclosure rules for election campaigning – putting a stop to the phony "issue ad" gambit employed by interest groups that involves careful avoidance of what have come to be known as the "magic words" of election advocacy in order to sidestep disclosure requirements.

Or so they thought.

As Milwaukee Journal Sentinel reporter Dan Bice's recent story about hidden election spending by a national group pushing school privatization makes clear, the issue ad loophole the GAB closed is still very much open . . . and coming in quite handy to groups like the pro-voucher American Federation for Children, thank you very much.

Say what? How can a closed loophole be open?

The GAB's amendment to Wisconsin's campaign finance disclosure rules is on the books, sure enough. But it's not being enforced.

It's hard to fathom why that is. After all, the amended rule's language was taken directly from a 2007 U.S. Supreme Court ruling that said it's not necessary for an ad to contain magic words like "vote for," "vote against," "elect" or "defeat" to be subject to disclosure requirements. The majority opinion written by Chief Justice John Roberts said groups sponsoring ads amounting to the "functional equivalent" of advocacy for or against a candidate also could be required to disclose their spending and funding sources. Roberts went on to spell out what "functional equivalent" means. The GAB applied Roberts' test to the new disclosure rules for Wisconsin.

Then, while ruling in favor of unlimited election spending in the Citizens United case in 2010, eight of the nine U.S. Supreme Court justices again came down squarely in favor of disclosure of the kind of activity the American Federation for Children engaged in last year. Only Clarence Thomas disagreed.

Yet, as Bice reported, the American Federation for Children told its members and funders that it spent $2.4 million influencing Wisconsin elections in 2012, but only reported about $345,000 worth of spending to state election authorities. In reporting on the complaint the Democracy Campaign filed against AFC, Bice wrote the "difference in what the federation disclosed is due to so-called issue ads that were run by the federation during the 2012 election. Groups are not required to say how much they spend on these types of TV and radio spots...."

Actually, they are required to say. Wisconsin's disclosure rules require them to say. And the highest court in the land has made it very clear these kinds of disclosure requirements are legally valid and constitutionally sound.

But more than three years after those judges who make up the Government Accountability Board acted unanimously to establish the new rules for electioneering disclosure, the agency still is not enforcing them.

So the issue ad hoax continues.