For a preview of how political speech might be regulated if Sens. John McCain (R-Ariz.) and Russ Feingold (D-Wisc.) got their campaign finance reform through Congress, one need look no further than Feingold's home state.
Wisconsin has long required political action committees and individual candidates to register with the Wisconsin State Elections Board (WSEB), which regulates their intake and outlays. Corporations, which are prohibited from spending in Wisconsin elections, and other groups are free under the Supreme Court's Buckley v. Valeo decision to engage in issue advocacy without registering with the WSEB. (See "Gagging on Political Reform," October 1996.)
Prior to the 1996 election, at least three such groups–the Sierra Club, Americans for Limited Terms, and Wisconsin Manufacturers and Commerce–were running issue-oriented television and radio ads and direct mail campaigns. Feeling heat from the ads, first-time political candidates, incumbents up for re-election, and individual citizens filed complaints with the WSEB and sued the organizations in state court. State judges banned the ads, and the WSEB proceeded to look into whether the ads constituted express advocacy and thus fell inside the Wisconsin Elections Commission's regulatory reach.
Although the election board's attorney concluded that regulating the ads would not pass constitutional muster, the board went ahead and classified the campaigns as express advocacy. It then fined Americans for Limited Terms and Wisconsin Manufacturers and Commerce–but not the Sierra Club–for violating election law. The two groups marched into federal court and made a First Amendment challenge to the law, but a judge quickly told them to return to state court. The groups are battling the WSEB jointly and as individual plaintiffs in separate cases.
"It is chilling that we have sitting politicians who are immune from having their voting records examined," explains WMC spokesperson James Pugh. Pugh vows that his organization will take the case to the Supreme Court, if necessary, to vindicate its right to free speech.