HEFFERNAN, CHIEF JUSTICE.
This is an original action brought by the petitioners pursuant to sec. 809.70, Stats., for a declaratory judgment seeking a declaration of the constitutionality of sec. 11.26(9)(a), Stats.,
Petitioner, John Gard, is the Representative to the Wisconsin State Assembly from the 88th Assembly District. Gard was first elected to that seat in an October 6, 1987 special election and was re-elected in a general election held on November 7, 1988. "Friends and Neighbors of John Gard" is Representative Gard's registered campaign committee. Petitioners, David T. Prosser and Gregg Underheim, are Representatives to the Wisconsin State Assembly from the 57th and 54th Assembly Districts, respectively. Petitioners, Republican Party of Marinette County and Republican Party of Oconto County, are political party committees and Petitioner,
This case arises out of the Wisconsin State Elections Board
On February 13, 1990, Petitioners filed a Petition for Leave to Commence an Original Action in the Wisconsin Supreme Court seeking a declaration from this court on the constitutionality of sec. 11.26(9)(a), Stats. This court granted the petition on February 20, 1990, and ordered that the proceedings in Case No. 89-CV-219, pending in Oconto County Circuit Court be stayed pending further order of this court. Leave to intervene was granted to various groups and individuals.
We find none of these arguments warrant holding that the questioned subsection of Wisconsin's Campaign Financing Law is unconstitutional. We conclude that there is a compelling state interest which justifies placing marginal restrictions on first and fourteenth amendment rights. Furthermore, we conclude that the Wisconsin
Wisconsin has a long tradition of ensuring a government free from corruption.
The committee's findings were published in final form in March, 1974. Governor's Study Committee on Political Finance: Final Report. In his 105-page report, Professor Adamany explained that the then current Wisconsin law, the Wisconsin Corrupt Practices Act, enacted in 1911, was inadequate to curb corruption in campaign financing. Id. at 34. In response to the archaic and unrealistic limits on the amount of money candidates could spend on their campaigns for political offices set by the Corrupt Practices Act, candidates had set up "voluntary committees" which basically were unaffected by campaign financing legislation. Id. In addition, the
Professor Adamany and the committee recognized that the problem with campaign financing in Wisconsin was not that candidates were spending too much money. In fact, Professor Adamany emphasized that "[r]eform legislation must acknowledge the need to spend money for vigorous campaigning." Id. at 50. Instead, he surmised the problem with campaign financing to be that the funds available for financing campaigns were not made available from a large and representative contributor pool. Professor Adamany recommended five areas of reform: (1) expenditure limits on the amount candidates could spend when receiving public financing; (2) contribution limits on the amount an individual, political party, and special interests could contribute to an individual candidate and all candidates; (3) full disclosure of all financial transactions of campaign financing required; (4) establishment of a bipartisan enforcement commission; and (5) availability of public financing to insure clean money from a representative source for candidates. Id. at 50-52.
In response, Governor Lucey called the Wisconsin legislature into a special session to reform the campaign financing laws. Shortly thereafter, Governor Lucey signed into law Special Session Senate Bill 5, creating what is now Chapter 11 of the Wisconsin Statutes. Laws of 1973, Ch. 334 (published July 6, 1974). Section 11.001, Stats., provides the following declaration of policy:
Section 11.26(9)(a), Stats., is but one subsection in a comprehensive legislative scheme to reform campaign financing in Wisconsin. To evaluate the constitutional implications of sec. 11.26(9)(a), Stats., we must review it in the context of the entire Campaign Financing Act.
The Campaign Finance Law creates essentially two classes of committees. An individual committee other than a political party committee or legislative campaign committee is what is commonly referred to as a PAC or special interest group. Limits are set on the amounts an individual committee, other than a political party committee or legislative campaign committee, may contribute to each candidate, depending upon the political office sought. Section 11.26(2), Stats. For example, in the 1987 Special Election, an individual PAC could contribute no more than $500 to an assembly candidate. Section
Section 11.26(9)(a), Stats., however, places a restriction on party-related committees by limiting the total amount of money a candidate may accept from all committees combined. The cap in sec. 11.26(9)(a) is set at 65 percent of the total disbursement level in sec. 11.31, Stats., which is the schedule of maximum disbursement levels for various political offices if public financing is accepted. Furthermore, sec. 11.26(9)(b) limits the total amount of money a candidate may accept from all PACs combined to 45 percent of the disbursement level.
To illustrate, during the November, 1987 special election campaign, the total disbursement level for a
Representative Gard allegedly violated the aggregate limit for all committees set by sec. 11.26(9)(a), Stats., and not the aggregate limit on contributions from PACs under sec. 11.26(9)(b) because he received less than $7,763 (45 percent limit) in contributions from PACs, but more than $11,213 (65 percent limit) from PACs and party-related committees combined.
In addition to restrictions on the source and size of campaign contributions, there are a number of other reform measures in Wisconsin's Campaign Finance Law. All committees, candidates, and corporations which establish PACs are subject to registration and reporting requirements, including itemization of all contributors
The regulation of political campaigns involves a careful balancing of two competing interests. Legislators are placed in the difficult position of trying to regulate political activity while at the same time allowing the political process to work free from government interference. "The area of campaign finance is unique because, in the campaign context, `both the first amendment and the law with which it is in potential conflict are designed to accomplish the same broad purpose, namely to advance the interests of democratic self-government.'" Nahra, Political Parties and the Campaign Finance Laws: Dilemmas, Concerns and Opportunities, 56 Fordham L. Rev. 53, 59 (1987).
We begin our discussion by setting forth some general principles from Buckley v. Valeo, 424 U.S. 1 (1976), the landmark Supreme Court decision which evaluated the constitutionality of several provisions of the Federal Election Campaign Act of 1971 (FECA), and from Buckley' s progeny. Limitations upon the giving and spending of money in political campaigns "operate in an area of the most fundamental First Amendment activities." 424 U.S. at 14. Restrictions on campaign contributions and expenditures implicate both the rights of political
Because campaign financing regulations burden first amendment rights of free speech and association, they can only survive strict scrutiny if it is shown that they serve a compelling governmental interest and that the regulations are narrowly tailored. Buckley, 424 U.S. at 44-45; Austin v. Michigan Chamber of Commerce, — U.S. —, 110 S.Ct. 1391, 1396 (1990). In Buckley, the Court emphasized, however, that "`[n]either the right to associate nor the right to participate in political activities is absolute'" and that even a "`"significant interference" with protected rights of political association' may be sustained if the State demonstrates a sufficiently important interest and employs means closely drawn to avoid unnecessary abridgment of" first amendment rights. Id. at 25. In Buckley, the Court recognized that there is a compelling state interest in regulating campaign financing to prevent either actual corruption or the appearance of corruption "stemming from public awareness of the opportunities for abuse inherent in a regime of large individual financial contributions." Id. at 27. See also FEC v. National Conservative PAC, 470 U.S. 480, 496-97 (1985), "We held in Buckley and reaffirmed in Citizens Against Rent Control that preventing corruption or the appearance of corruption are the only legitimate and compelling government interests thus far identified for restricting campaign finances." Moreover,
424 U.S. at 19-21.
See also California Medical Assn. v. FEC, 453 U.S. 182, 196 (1981).
It is subsection (a) of 11.26(9), Stats., which places a cap on the total amount of contributions a candidate may accept from all committees, including party-related committees and PACs, which the petitioners challenge. We conclude that sec. 11.26(9)(a) which restricts committee contributions to a candidate's campaign, burdens the first amendment rights to free speech and association of those committees and, therefore, is subject to strict judicial scrutiny. The statute will pass constitutional muster only if this court concludes that it is justified by the compelling state interest of preventing corruption
Respondents claim that sec. 11.26(9)(a), Stats., is a contribution limit, not an expenditure limit, and that restrictions on contributions require less compelling justification than restrictions on independent spending. FEC v. Massachusetts Citizens for Life, Inc., 479 U.S. 238, 259-260 (1986). Petitioners, on the other hand, argue that sec. 11.26(9)(a) is an expenditure limit because it limits the amount of money a candidate can spend from a particular source—committees. Petitioners argue that all aggregate contribution limits have the effect of limiting a candidate's spending by placing an absolute ceiling on the amount a candidate may receive from a source.
The United States Supreme Court has recognized that "contribution restrictions could have a severe impact on political dialogue if the limitations prevented candidates and political committees from amassing the resources necessary for effective advocacy." Buckley, 424 at 21. In upholding FECA's contribution limits, the Court noted that "[t]he overall effect of the Act's contribution ceilings is merely to require candidates and political committees to raise funds from a greater number of persons and to compel people who would otherwise contribute amounts greater than the statutory limits to expend such funds on direct political expression, rather than to reduce the total amount of money potentially available to promote political expression." Id. at 21-22.
We disagree with Petitioners that, by limiting the amount of money that a candidate can accept from committees, the legislature is placing a limit on the amount of money that a candidate can spend. After a candidate has received the amount of money allowed by the aggregate limit from committees, the candidate can still receive an unlimited amount of money from other individuals, from their own sources, and from individuals through other sources such as conduits.
This conclusion is supported by the legislative history of Wisconsin's Campaign Finance Law. The reformers of campaign financing were not concerned that candidates were spending too much money and, in fact, recognized that candidates needed to spend a considerable amount of money in order to have an effective campaign. The reformers were concerned, however, with large concentrations of money from an unrepresentative pool of contributors which would have a corrupting influence on candidates. Governor's Study Committee on Political Finance: Final Report, p. 49.
Respondents also argue that this court should defer to the legislative determination of where the balance should be struck between regulation of campaign financing and the first amendment.
The Court afforded less deference to the legislature, however, in FEC v. National Conservative PAC, 470 U.S. 480, 500-501 (1985), where Justice Rehnquist wrote for a majority of the court and announced that "when the First Amendment is involved, our standard of review is `rigorous.'" Recently, in Austin, the Court once again deferred to the legislative determination that a particular type of political expenditure—immense aggregations of wealth accumulated through the corporate form—undermines the integrity of the political process.
We conclude, however, that where the first amendment is involved we cannot blindly defer to the legislative determination of where the constitutional balance should be struck. "To the extent that the Government suggests that we should defer to Congress' conclusion about an issue of constitutional law, our answer is that while we do not ignore it, it is our task in the end to decide whether Congress has violated the Constitution." Sable Communications of California, Inc. v. F.C.C., — U.S. —, 109 S.Ct. 2829, 2838 (1989). Therefore we independently review the legislative determinations that sec. 11.26(9)(a), Stats., was necessary to prevent corruption or the appearance of corruption and that it was the least
In Buckley, the court looked at a number of documented abuses to provide support for the conclusion that the legislative determination was correct.
424 U.S. at 27.
Likewise, this court will look to materials from the Wisconsin Legislative Reference Bureau and State Elections Board, of which we properly may take judicial notice, State ex rel. Strykowski v. Wilkie, 81 Wis.2d 491, 504, 261 N.W.2d 434 (1978), in determining whether the legislative enactment violates constitutional protections.
First we address whether there is a compelling state interest in limiting aggregate committee contributions. Here the Wisconsin legislature has determined that large committee contributions to individual candidates, either directly or through party-related committees, will undermine the integrity of the political process. The Respondents state two reasons why the aggregate contribution limit is necessary in order to prevent large committee contributions from corrupting the political system. The Respondents maintain that the aggregate limit is necessary
Our inquiry begins with the legislative history of Wisconsin's Campaign Financing Law. As mentioned above, limitations on contributions to candidate's campaigns are but one aspect of comprehensive legislation passed by the Wisconsin legislature in 1974. The impetus for this legislation was the findings of Governor Lucey's Study Committee on Political Finance, chaired by Professor Adamany. Governor's Study Committee on Political Finance: Final Report.
In this report, the committee explained why limitations should be set on the amount of money candidates could receive from associations and political committees. The committee recognized that committees play an important role in Wisconsin politics and that constitutional protections on freedom of association required that committees be allowed to participate in campaign contributing. Nevertheless, the study committee was concerned that committees would circumvent contribution limits. The committee was particularly concerned with the ability of special interest PACs to "launder" money through the political parties.
Id. at 50.
Therefore, the committee recommended that a 25 percent contribution limit be set on the amount of money, in the aggregate, a candidate could receive from all committees combined. Id. at 73-74. The Report stated:
Id. at 74.
The committee emphasized that the aggregate limit did not prevent committees from collecting and forwarding contributions to the candidate in the name of an individual,
The concerns expressed in the Committee's Final Report were echoed in the drafting notes accompanying the passage of Wisconsin's aggregate limit on committee contributions by the Wisconsin legislature. In a memorandum entitled, "The Problems Inherent in Partially Limiting the Amount Special Interest Groups can Contribute," Senator William Bablitch, Senate Majority Leader, explained why limiting the amount each special interest group could contribute to a candidate was insufficient to accomplish the legislative goal of limiting the tremendous impact of special interests on individual campaigns. (Legislative Reference Bureau Drafting file—1973 Laws, Ch. 334.) Senator Bablitch explained that a single special interest group could proliferate into many, thereby evading the individual contribution limits. In addition, he warned that special interest groups could evade the contribution limits by contributing to the major political parties "with a tacit understanding of which candidate is going to receive [the contribution]." To prevent such corruption, he recommended that an aggregate limit be set on all committee contributions to a particular candidate. The legislature placed that limit at 65 percent, not 25 percent as recommended by Professor Adamany. Section 11.26(9), Stats.
Since it was originally passed in 1974, this subsection has remained substantively intact. In 1977, the legislature renumbered the provision as sec. 11.26(9)(a) and added sec. 11.26(9)(b), Stats., which placed an aggregate limit on the contributions a candidate could receive from all PACs. 1977 Wis. Laws, ch. 107, secs. 30, 31. And in 1986, the legislature added contributions from legislative campaign committees to candidates to the 65 percent
While Wisconsin's aggregate limit on committee contributions is somewhat novel, it is not an aberration. Five other states have subsequently adopted similar provisions, and Congress is currently considering proposed legislation which is similar to Wisconsin's.
The findings of this Congressional Committee confirm the Wisconsin legislature's concern that without effective aggregate contribution limits, narrow interest groups have a corrupting influence on individual candidates. The Committee found that there was an enormous growth in the campaign financing role played by PACs and an increasing dependence by candidates upon such money.
Id. at 16. (Emphasis supplied.)
Even the Committee's minority report states that large contributions from groups with a narrow special interest bias can have the "unacceptable appearance of legislative `quid pro quos.'" Id. at 74.
A dramatic increase in PAC contributions and influence on individual candidates has also taken place at the state level. In Wisconsin, PAC contributions to state candidates rose by over 50 percent in just four years. See Wisconsin State Elections Board, Report on Campaign Activity for 1987-88 and Summary released February 26, 1990. More significant, however, is the potential impact of narrow interest PAC money, which is channeled through party-related committees, on an individual candidate. See NRWC, 459 U.S. at 210 (1982).
To illustrate the potential impact of large PAC contributions on individual candidates and, therefore, the need for sec. 11.26(9)(a), Stats., in order to prevent domination of an individual candidate by narrow interest PAC money, we need only look at some statistics from the State Elections Board. Respondents point out that, despite the aggregate limits on the amount of money all PACs may contribute to a party-related committee ($150,000), these committees are primarily funded with PAC money. During the 1983-84 period, 77 percent of contributions to legislative campaign committees came from PACs. Shea, Legislative Campaign Committees: The Wisconsin Experience, p. 6 (a research report prepared
We conclude that Respondents have demonstrated that there is a compelling state interest in placing an aggregate limit on the contributions that an individual candidate may receive from all committees. The purpose of sec. 11.26(9)(a), Stats., along with other restrictions on contributions to individual candidates, is to limit the impact of huge special interest contributions on a candidate and to encourage a broad and diverse base of support in order to prevent either actual corruption or the appearance of corruption. In Buckley, the Court recognized that, although the ceiling imposed on an individual's total contributions did impose an ultimate restriction upon the number of candidates and committees with which an individual could associate by means of financial support, an aggregate limit was necessary in order to prevent evasion of the individual-candidate contribution limit by a person who might otherwise contribute massive amounts of money to a particular candidate through the use of unearmarked contributions to committees likely to contribute to that candidate, or huge contributions to the candidate's political party. The Court concluded that this additional restriction imposed by the overall ceiling "is thus no more than a corollary of the basic individual contribution limitation that we have found to be constitutionally valid." 424 at 38. So, too, we conclude that the aggregate limit on committee contributions is necessary because of the ability of committees having the same interests to join together and make large contributions which could unduly dominate an
Next we consider whether sec. 11.26(9)(a), Stats., is narrowly tailored to pass the strict scrutiny test. Petitioners argue that sec. 11.26(9)(a) is unnecessary because other existing statutory limits on committee contributions prevent proliferation of PACs, laundering of PAC funds through political party committees, and excessive PAC influence on a candidate's campaign. First of all, candidates may not accept more than 45 percent of their disbursement level from PACs. Section 11.26(9)(b). A party-related committee may not receive more than $150,000 in aggregate contributions from PACs and other committees in a biennium. Sections 11.26(8)(a) and 11.265(2). All county, congressional, legislative, local and other affiliated committees of the party are also subject to these restrictions. Section 5.02(13). The $6,000 limit on "committee" contributions to a partyrelated committee pertains to the subunits and affiliates of the contributing committee. Section 11.26(8)(b). Both "earmarking" contributions to a party for a specific candidate and "laundering" contributions for a candidate through a party are prohibited by secs. 11.16(4) and 11.30(1), Stats., respectively. In addition, all contributions by an individual, including those to committees, are limited in the aggregate to $10,000. Section 11.26(4). Finally, all political party committees, PACs, out-of-state committees, and national parties are subject to disclosure requirements. Sections 11.06(1)(a) and 11.06(3w). Accordingly, Petitioners contend that sec. 11.26(9)(a) is not the least restrictive means of preventing corruption.
Petitioners suggest that legislative campaign committees and political party committees do not pose the same threat of corruption as PACs and should therefore be excluded from sec. 11.26(9)(a), Stats.
The legislature, by enacting sec. 11.26(9)(b), Stats., asserted that party-related committees can reflect a broader base of public support than PACs. Section 11.26(9)(b) prohibits PACs from contributing more than 45 percent of a candidate's disbursement level. Section 11.26(9)(a) however, sets the contribution limit for all committees, including party-related committees, at 65 percent, thus, guaranteeing them at least 20 percent of the candidate's disbursement level.
Although the legislature recognized that partyrelated committees can represent diverse interests, the
Respondents also argue that sec. 11.26(9)(a), Stats., is necessary in order to act as a buffer between the flow of money from PACs to the national political parties, which are entitled under both federal and state law to make unlimited contributions to state and local political party committees, which, if not for sec. 11.26(9)(a) would be allowed to make unlimited contributions to an
We conclude, based on this evidence, that there would be a potential for undue domination of a candidate's campaign by narrow interest PAC contributions if party-related committees were not restricted in their ability to contribute to an individual candidate. Therefore, we reject petitioner's argument that party-related committees should not be included in the aggregate contribution limit on all committee contributions set forth in sec. 11.26(9)(a), Stats.
Petitioners also argue that sec. 11.26(9)(a), Stats., unduly restricts a committee's ability to make even a symbolic expression of support by placing an absolute ban on committee contributions once a candidate has received the aggregate limit from committees. We conclude that sec. 11.26(9)(a) does not place an absolute ban on committee contributions. The 65 percent limit is not absolute. That is, the 65 percent limit is on contributions which have been "receive[d] and accept[ed]" by the candidate. Section 11.26(9)(a). Once a candidate has reached the aggregate limit, the candidate may always return some contributions from committees in order to accept contributions from other committees. As Professor Adamany recommended in 1974 to Governor Lucey, the candidate "will select which groups he receives support from and in what amounts." See supra at p. 23. The aggregate limit encourages candidates to seek a broad base of support by allowing many people to make smaller
In addition, committees retain an extraordinary ability to express themselves, notwithstanding the aggregate limit set forth in sec. 11.26(9)(a), Stats. The aggregate limit on committee contributions does not prohibit PACs from spending unlimited amounts of money on independent expenditures to support or oppose candidates.
Petitioners point out, however, that legislative campaign and political party committees cannot make independent expenditures in support of or in opposition to candidates, and that therefore, sec. 11.26(9)(a), Stats., is overbroad. Party-related committees cannot make independent expenditures because it is assumed that due to
First of all, Petitioners overlook the special status conferred upon party-related committees. Other than sec. 11.26(9)(a), Stats., there are no limits on partyrelated committees' ability to contribute to the candidate. Even the limit set in sec. 11.26(9)(a) is generous, allowing a party-related committee to contribute up to 65 percent of a candidate's disbursement level and, in any event, reserving 20 percent of that amount for partyrelated committee contributions. In addition to these generous contribution limits, party-related committees can make unlimited expenditures on generic party-building activities, i.e. "Vote Republican." Party-related committees may also receive unlimited amounts of money from their national counterparts and distribute unlimited amounts to county and congressional district units of the party. Sections 11.26(8)(a) and (b), Stats.
Moreover, party-related committees may act as a "conduit" for individual contributions to candidates. A "conduit" is any individual or organization that receives a contribution and then transfers the contribution to another individual or organization without exercising discretion over the amount of the contribution or identity of the candidate who receives the contribution. Section 11.01(5m), Stats. A contribution which is passed through a conduit to a candidate is considered a contribution from the contributor and not from the conduit or its sponsoring organization. Section 11.26(12m), Stats.
424 U.S. at 26-27.
We conclude that sec. 11.26(9)(a), Stats., is necessary as part of Wisconsin's Campaign Financing Law, in order to prevent the domination of any individual candidate's campaign by narrow special interest contributions. We reject petitioner's assertion that the individual contribution limits on individual PACs are sufficient because the legislature has indicated that these limits could easily be circumvented through amoeba-like proliferation. Finally, while the aggregate limit ($150,000) on all PAC contributions to party-related committees may have some significance in the context of a particular committee, that aggregate limit becomes meaningless in the context of an individual candidate's campaign. Without sec. 11.26(9)(a) a committee could
Petitioners also assert that sec. 11.26(9)(a), Stats., is fatally underinclusive because the means selected to achieve the purpose of the statute provide only ineffective support for that purpose. Petitioners claim that the limits in sec. 11.26(9)(a) increase PAC influence on individual candidates by encouraging PACs to act as conduits for individual candidates, which Petitioners contend, is a legal loophole around the PAC-candidate contribution limits. That is, by relying on conduits, candidates could receive all of their funding from large "PAC" contributions, notwithstanding the existing legal limits on contributions.
As discussed above, a conduit is any individual or organization that receives a contribution from an individual and then transfers the contribution to another individual or organization without exercising discretion over the amount of the contribution or identity of the candidate who receives the contribution. Section 11.01(5m), Stats. While there may be potential for the conduits to, in fact, exercise discretion over the individual's contribution, even though it is prohibited, we conclude that this problem does not justify abandoning other campaign reform provisions and would amount to "throwing away the baby with the bath water."
Petitioners also argue that sec. 11.26(9)(a), Stats., is overbroad because it bans committee contributions from all committees, regardless of size, wealth, number of
Next Petitioners challenge sec. 11.26(9)(a), Stats., on the grounds that it violates their freedom of association guaranteed by the first amendment. Petitioners assert that sec. 11.26(9)(a), Stats., arbitrarily cuts off candidate's contributions from committees once the 65 percent cap has been reached, thereby forcing individuals to contribute as individuals, and not as members of a committee. Petitioners claim that the net effect of sec. 11.26(9)(a) is to encourage individuals to dissociate themselves from political committees, including political party committees once the 65 percent cap has been reached.
We disagree with Petitioners that sec. 11.26(9)(a), Stats., causes individuals to dissociate themselves from committees. The effect of sec. 11.26(9)(a) is simply to limit the amount of money a party-related committee can contribute directly to a candidate's campaign. This limit has no impact on an individual's ability to contribute to a committee. Furthermore, this argument suggests that individuals have an unfettered first amendment right to contribute to a particular candidate through a committee. In fact, if the purpose of an individual contribution to a committee is to give that money to a particular candidate, then sec. 11.26(9)(a) becomes even
Adamany, PAC's and the Democratic Financing of Politics, 22 Ariz. L. Rev. 569, 596 (1980).
We conclude that the limits on committee contributions do not cause individuals to disassociate themselves from committees. Individuals join and contribute to committees for many reasons, but they are never guaranteed that their contributions will ultimately somehow be transmuted into a contribution to the candidate. This would be true of a committee which had already contributed the amount allowed by law to a particular candidate as well as to a committee which had not yet made a contribution to a particular candidate.
Our conclusion is consistent with federal law. While United States Supreme Court cases almost proscribe limitations on the rights of individuals to freely associate
Because we hold that sec. 11.26(9)(a), Stats., does not violate the first amendment, we must address Petitioners' contention that it discriminates against committees and the individuals who contribute to them, in favor of individuals who contribute directly to candidates, as well as in favor of "early" contributors, to the detriment of "late" contributors, in violation of the equal protection clauses of the United States and Wisconsin Constitutions.
"Because the right to engage in political expression is fundamental to our constitutional system, statutory classifications impinging upon that right must be narrowly tailored to serve a compelling governmental interest." Austin, 110 S.Ct. 1391, 1401 (1990). A statute will violate the equal protection clause if the limits imposed
First we must determine whether sec. 11.26(9)(a), Stats., imposed a greater burden on the first amendment rights of committees than it does on the first amendment rights of individuals. Petitioners claim that sec. 11.26(9)(a) could have the effect of prohibiting some committees from making even a symbolic contribution to a particular candidate if the candidate has already received the amount allowed. We note that sec. 11.26(4) which places an aggregate limit of $10,000 on the total contributions an individual may make to all candidates and committees combined in a calendar year, may also have the effect of prohibiting an individual from making even a symbolic contribution to a particular candidate. In fact, there is no corresponding aggregate limit on a committee's total contributions to all candidates and committees. Because both committees and individuals are subject to limits which may have the effect of prohibiting them from making even a symbolic contribution to an individual candidate, we conclude that sec. 11.26(9)(a) does not impose a greater burden on the first amendment rights of committees than is imposed on the first amendment rights of individuals by contribution limits set by other provisions in Wisconsin's campaign financing law.
Even if we were to conclude that sec. 11.26(9)(a), Stats., treats committees differently than individuals, the United States Supreme Court has recognized that different entities may be treated differently if different forms of regulation are necessary in order to protect the
Next we consider petitioner's argument that the statute imposes a greater burden on the first amendment rights of committees which make their contributions "late" in the campaign than committees which make their contributions "early" in the campaign. Petitioners characterize the effect of the aggregate limit on committee contributions to be a race by committees to get their contribution in to a particular candidate before the aggregate limit is reached. Accordingly, they assert that there is nothing inherently more "corrupt" about those committees which wish to make a contribution after the aggregate limit is reached when compared to those committees which were able to get their contributions in before the aggregate limit was reached.
They point out that this is particularly significant with respect to political party committees because they typically are "late" contributors. Political party committees generally make contributions to individual candidates only after a primary run-off election has taken place. Because the aggregate limit applies to both the primary and general election, petitioners claim the aggregate limit has the effect of preventing political party committees from contributing to a candidate's campaign.
Perhaps in recognition of the fact that parties do not contribute until later in a candidate's campaign, sec. 11.26(9)(a), Stats., together with sec. 11.26(9)(b)
On the statute's face, PACs which contribute late are treated differently than PACs which contribute early to a candidate's campaign, just as party-related committees which contribute late are treated differently than party-related committees which contribute early. However, we conclude that no committees are ever guaranteed that a candidate will accept their entire contribution. A candidate may refuse to accept contributions over a certain amount. A candidate may refuse a contribution from a certain committee. As Professor Adamany recognized, a candidate may return part of a contribution and make room for another contribution, thereby allowing all committees to contribute, albeit in a smaller amount. Therefore, we conclude that whether or not a committee will ultimately be able to contribute to a candidate is left up to the candidate and does not necessarily correlate with the timing of the contribution. Accordingly, we conclude that sec. 11.26(9)(a), Stats., does not impose a greater burden on the first amendment rights of "late" contributors than it does on "early" contributors.
In summary, we conclude that the aggregate contribution limit set forth in sec. 11.26(9)(a), Stats., places only a marginal restriction on the first and fourteenth amendment rights of committees and candidates. The aggregate contribution limit is necessary to serve the State's compelling interest in preventing narrow issue PACs from circumventing PAC-candidate contribution
For the reasons set forth in this opinion we conclude that sec. 11.26(9)(a), Stats., does not violate the First or Fourteenth Amendments of the United States Constitution, nor the equivalent provisions of the Wisconsin Constitution.
By the Court.—Rights Declared. Section 11.26(9)(a), Stats. declared constitutional. The stay of proceedings in State of Wisconsin Elections Board v. John Gard and Friends and Neighbors of John Gard, Case No. 89-CV-219, pending in Oconto County Circuit Court is vacated.
Justice Bablitch took no part.
Section 11.31(1), Stats., sets forth a schedule of disbursement levels which operate as spending limits if a candidate accepts public financing. In addition, the disbursement levels provide a reference point for setting contribution limits such as in sec. 11.26(9), Stats. The disbursement level during the 1987 special election for an assembly candidate was $17,250 total in the primary and election, with disbursements not to exceed $10,775 for either the primary or the election. Section 11.31(1)(f), Stats.
Political party committees are statewide political organizations registered under sec. 11.05, Stats., such as the Republican Party of Wisconsin or the Democratic Party of Wisconsin. Section 5.02(13), Stats.
Legislative campaign committees are established by the members of each political party in each house of the Wisconsin Legislature. Section 11.265, Stats. There are currently four legislative campaign committees in Wisconsin: the Assembly Democratic Campaign Committee, the Republican Assembly Campaign Committee, the State Senate Democratic Committee, and the Committee to Elect a Republican Senate. See Shea, Legislative Campaign Committees: The Wisconsin Experience (1986) (available at Wisconsin Legislative Reference Bureau). See also 1989 Wis L. Rev. 1467, n.8.
The term "committee" includes all committees. We use the term "party-related committees" to refer to legislative campaign committees and political party committees and "PAC" to refer to all other committees.