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Van Hollen Issues Formal Opinion on Direct Impact of Citizens United on Wisconsin Campaign Financing Laws

 

MADISON — Attorney General J.B. Van Hollen issued a formal opinion today on the direct impact of Citizens United on Wisconsin law.   

 

In the opinion, Van Hollen stated that “the reasoning and conclusion of Citizens United are clearly applicable and that any ban on corporate independent expenditures under Wisconsin law violates the guarantees of freedom of speech and association under the First Amendment to the United States Constitution.”  Van Hollen also stated that Citizens United did not have a “direct and immediate impact on the validity of those portions of Wis. Stat. § 11.38 which do not involve corporate independent expenditures.”   For example, the decision did not address prohibitions on corporate contributions to candidates, which is also prohibited by Wis. Stat. § 11.38. 

 

Van Hollen’s opinion also reasons that statutory provisions that prohibit certain independent expenditures (such as engaging in express advocacy) unless the person speaking registers and discloses certain information to the Government Accountability Board does not prohibit constitutionally protected corporate speech because corporations may register and report under the existing statutory scheme. 

 

Last, Van Hollen discussed Citizens United’s impact on campaign financing laws relating to registration, disclosures, and disclaimers.  Van Hollen noted that Citizens United made clear that First Amendment does not categorically exclude so-called “issue advocacy” from the scope of permissible reporting, disclosure, and disclaimer regulations.  He cautioned, however, that Citizens United does not independently authorize regulatory action.  Only state law may do so, and those laws must pass “exacting scrutiny” to be constitutional. 

 

In discussing the limits of the scope of the opinion, Van Hollen stated that “Citizens United provides direction on, but ultimately leaves unanswered, significant questions regarding the appropriate scope of acceptable governmental regulation, through campaign financing regulations, of the exercise of fundamental First Amendment freedoms.  It is beyond the scope of this opinion to answer each of these unanswered questions as applied to Wisconsin law.  That Citizens United may not directly apply to portions of Wisconsin’s campaign financing law is not to say that they are free of constitutional doubt.  Regulations in this area, by their nature, affect First Amendment interests. . . .  In a free society, these interests should not be disregarded in the lawmaking and regulatory process.”               

 

A copy of the formal opinion and request for an opinion from the Government Accountability Board can be found at:

 

 

2010 file: