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.
Wisconsin Lawyer
