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Supreme Court Digest
By Prof. Daniel D. Blinka & Prof. Thomas
J. Hammer
Constitutional Law
Elections - Free Speech - Express Advocacy
Elections Board of Wisconsin
v. Wisconsin Manufacturers & Commerce, No. 98-0596
(filed 7 July 1999)
The Wisconsin Manufacturers & Commerce Issues Mobilization
Council Inc. (IMC) produced advertisements directed at six incumbent
state legislators in the Fall 1996 general election. The legislators
complained to the state elections board, which later determined
that the IMC had engaged in express advocacy and ordered it to
comply with chapter
11 of the Wisconsin Statutes by April 1997 (for example,
the filing of a campaign finance report). IMC refused to comply
and the elections board filed this action against IMC and others
in June 1997. The circuit court granted the respondents'
motion to dismiss the complaint on constitutional grounds.
On bypass from the court of appeals, the supreme court affirmed
in an opinion written by Justice Crooks. The court held that
when IMC and the other defendants broadcast their advertisements,
they "lacked fair warning that the ads could qualify as
express advocacy in Wisconsin under a context-based approach."
For this reason, the board "engaged in retroactive rule-making
in attempting to apply such an approach." Based on this
holding, the supreme court declined to address whether the ads
in fact were express advocacy. Nevertheless, the court "determine[d]
that the definition of the term express advocacy is not limited
to the specific list of 'magic words' such as 'vote
for' or 'defeat' found in" the case law.
The court left the "task" of fashioning a rule governing
express advocacy advertisements to the Legislature or the elections
board, "consistent with this opinion."
Justice Wilcox did not participate. Justice Bablitch concurred.
Justice Prosser, joined by Chief Justice Abrahamson, concurred
in part and dissented in part, noting that "[t]he First
Amendment is not what it used to be."
Prof. Daniel D. Blinka and Prof. Thomas
J. Hammer invite comments and questions about the digests. They
can be reached at the Marquette University Law School, 1103 W.
Wisconsin Ave., Milwaukee, WI 53233, (414) 288-7090.
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