Wisconsin Disclosure Amicus

IJ Tells Wisconsin Supreme Court: State’s Disclosure Rule Stifles Free Speech, Should be Struck Down

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Madison, Wi.—Can the government require you to file a detailed report if you write a Facebook post that criticizes a public official?  That’s a question the Wisconsin Supreme Court will answer and, in the process, determine the fate of free speech rights for millions of Wisconsin residents.

In July 2010, the Wisconsin Government Accountability Board issued a rule that all communications made for a political purpose—including emails, Facebook posts, t-shirts and handmade signs—are subject to disclosure and reporting requirements if a speaker spends more than $25 producing them.  Although the worst aspects of the rule have been temporarily suspended, it will fully take effect again by September 2011.

The rule does not just apply to traditional “express advocacy” asking people to vote for or against candidates.  Sixty days before an election, the rule mandates reporting of money spent on any statement that “refers to the personal qualities” of a candidate or “supports or condemns” a candidate’s position on issues.

Thankfully, a number of groups and individuals have challenged the rule in the Wisconsin Supreme Court.  On Monday, the Institute for Justice filed a brief in support of them, arguing that the new rule will have significant chilling effects on citizens’ ability to engage with their neighbors on important public issues.

“This is a truly breathtaking expansion of government power,” said Institute for Justice attorney Jason Adkins, who co-authored the IJ’s brief with the Wisconsin high court.  “For example, if the members of the Wisconsin Assembly and the Governor were up for reelection within the next 60 days, the protestors who have criticized their actions over the past few weeks would have violated the law and been subject to criminal penalties.”

“If the First Amendment has any meaning it is that the government cannot force you to file a form every time you criticize a public official,” explained IJ-MN attorney and brief co-author Anthony Sanders.  

The brief drew upon research the Institute for Justice sponsored demonstrating that disclosure laws impose significant burdens on ordinary citizens.  In one study, campaign finance expert Dr. Jeffrey Milyo of the University of Missouri asked 255 people to comply with widespread registration and disclosure laws, but not one participant managed to do so correctly.  The average correct score was just 41 percent.  Each person could have been subject to fines and penalties in real life.  Participants found the red tape was “worse than the IRS” and said it would make them less likely to get involved in politics.  Wisconsin’s reporting and disclosure procedures are very similar to those used in the study.  The new rule expands them to virtually all Wisconsin residents who discuss politics.

Defending the rule in the Supreme Court are the Wisconsin Attorney General and the Wisconsin Education Association Council teachers union.

Adkins said, “If the Wisconsin Supreme Court does not protect the right of citizens to comment on the issues of the day without filling out forms with a team of bureaucrats, then there are bigger problems in Wisconsin than a budget shortfall.  There’s a serious threat to our fundamental right to free speech.”

IJ’s brief is available for download here.