Yesterday a federal appeals court in Chicago struck down Wisconsin rules requiring disclosure of election-season "issue ads" sponsored by interest groups. The court said state election authorities exceeded their legal authority in establishing the rules.
The ruling changes nothing, because the state had not been enforcing the now-invalidated rules. But the decision does shed additional light on how politicized judges and courts have become.
The judges on the 7th Circuit U.S. Court of Appeals seemed flummoxed by the rules established by the state Government Accountability Board back in 2010 as well as the underlying state law. “Like other campaign-finance systems, Wisconsin’s is labyrinthian and difficult to decipher without a background in this area of the law,” Judge Diane Sykes wrote for the court.
Wisconsin law says if a group engages in activities for a political purpose, it is subject to disclosure requirements and has to respect any applicable campaign finance restrictions. The GAB rules were based on the reasonable and demonstrably correct conclusion that interest group "issue ads" in the weeks before an election have a political purpose. It's hard to see what is "labyrinthian" about that.
Part of the problem might be that Wisconsin's rules were defended in court by a state agency headed by an opponent of such regulation. But even if Attorney General J.B. Van Hollen didn't exactly put his heart into making the state's case, that's no excuse for federal judges finding a longstanding and often-litigated Wisconsin law "difficult to decipher."
Given the hypocrisy at the core of the federal court's judgment, all this talk about how hard it is to make heads or tails of age-old state campaign finance laws looks like little more than political cover.
Again, Wisconsin law has said for a very long time that if groups engage in activities for a political purpose, they have to publicly disclose both their spending and sources of funding and also raise the money in legally permissible ways. The old state Elections Board approved a rule saying that messages not containing words like "vote for," "vote against," "elect," "defeat," "support" or "oppose" have no political purpose. Neither the 7th Circuit nor any other court ever ruled that the Elections Board exceeded its authority by interpreting "political purpose" in this bizarre way.
But when the GAB replaced the Elections Board and proceeded to replace its predecessor's rule with a new one based on a far-more sensible test to determine which activities have a political purpose and which ones don't, judges suddenly find the GAB lacks the legal authority to write such rules. Yesterday's court decision keeps the Elections Board's magic-words test in force.
The 7th Circuit's decision leaves Wisconsin voters in the dark about who is paying for millions of dollars worth of political attack ads. But the obvious double standard that is at the heart of the court's ruling shines a very bright light on how judges increasingly are not deciding cases based on a consistent application of fair and just legal principles, but rather are bending facts and laws to fit their own political biases.