(NOTICE OF PUBLIC HEARING)
NOTICE OF PROPOSED ORDER ADOPTING RULE
GOVERNMENT ACCOUNTABILITY BOARD
CR 10-087 and EmR 1018
Organizations Making Independent Disbursements, GAB 1.91
NOTICE IS HEREBY GIVEN that pursuant to ss. 5.05(1)(f), 227.11(2)(a), 227.16, and
227.24(4) Stats., and interpreting generally Chapter 11, Stats., the Government
Accountability Board will hold a public hearing to consider adoption of an emergency
and permanent rule to create GAB §1.91, Wis. Adm. Code, relating to organizations
making independent disbursements.
The public hearing will be held at the time and location shown below.
Date and Time Location (Please note this is a new location)
August 30, 2010 Government Accountability Board Office
at 9:45 a.m., Risser Justice Center
120 Martin Luther King, Jr. Blvd., Room 150
This public hearing site is accessible to people with disabilities. If you have special
needs or circumstances that may make communication or accessibility difficult at the
hearing, please contact the person listed below.
ANALYSIS PREPARED BY GOVERNMENT ACCOUNTABILITY BOARD:
1. Statutes Interpreted: ss. 11.01(4) and (18m), 11.05, 11.055, 11.06, 11.09, 11.10,
11.12, 11.14, 11.16, 11.19, 11.20, 11.21(16), 11.30, 11.38, 11.513, Stats.
2. Statutory Authority: ss. 5.05(1)(f) and 227.11(2)(a), Stats.
3. Explanation of agency authority: Express rule-making authority to interpret the
provisions of statutes the Board enforces or administers is conferred on it pursuant
to s. 227.11(2)(a), Stats. In addition, s. 5.05(1)(f), Stats., provides that the Board
may promulgate rules under ch. 227, Stats., for the purpose of interpreting or
implementing the laws regulating the conduct of elections or election campaigns
or ensuring their proper administration.
In Citizens United v. FEC, 558 U.S. ___, (No. 08-205)(January 21, 2010), the
United States Supreme Court greatly expanded the rights of organizations to
engage in independent expenditures and strengthened the ability of the
government to require disclosure and disclaimer of the independent expenditures.
Pursuant to s. 5.05(1), the Board has the responsibility for the administration of
campaign finance statutes in ch. 11, Stats. Rules promulgated by the Board will
ensure the proper administration of the campaign finance statutes and properly
address the application of Citizens United v. FEC.
4. Related statute(s) or rule(s): ch. 11, Stats., and ch. GAB 1, Wis. Adm. Code.
5. Plain language analysis: Within the context of ch. 11, Stats, the proposed order
will provide direction to organizations receiving contributions for independent
disbursements or making independent disbursements following the U.S. Supreme
Court decision in Citizens United v. FEC, 558 U.S. ___, (No. 08-205)(January 21,
2010). The proposed rule enumerates registration, reporting, and disclaimer
requirements of provisions of ch. 11, Stats., which apply to organizations
receiving contributions or making independent disbursements. Comporting with
Citizens United, the proposed rule does not treat persons making independent
disbursements as full political action committees or individuals under s. 11.05,
Stats., for the purposes of registration and reporting. With respect to
contributions or in-kind contributions received, this proposed rule requires
organizations to disclose only donations “made for” political purposes, but not
donations received for other purposes.
6. Summary of, and comparison with, existing or proposed federal regulations: At
the federal level, the FEC provides rules at 11 CFR 109.10, which regulate
persons who are not a committee and make independent expenditures. An
independent expenditure statement and reports quarterly are required for any
person making independent expenditures in excess of an aggregate $250.00 in a
calendar year. If a person makes an independent expenditure of $10,000.00 or
more, an independent expenditure statement and report must be filed within 48
hours of the expenditure. Any person making an independent expenditure of
$1,000.00 or more within 20 days of an election must file an independent
statement and report within 24 hours of the expenditure. The independent
expenditure statement must include the identity of the person making the
expenditure, any contributions received in excess of $200.00, and the candidate
benefitted by the expenditure. In addition, a disclaimer is required for any
communication resulting from an independent expenditure.
7. Comparison with rules in adjacent states:
Section 5/9-1.5, Ill. Adm. Code, defines “expenditure” generally and to include an
electioneering communication regardless of whether the communication is made
in concert or cooperation with, or at the request, suggestion or knowledge of a
candidate, a candidate’s authorized local political committee, a State political
committee, or any of their agents. Sections 5/9-1.7 and 1.8, Ill. Adm. Code,
define local and State political committees to include a candidate, individual,
trust, partnership, committee, association, corporation, or any other organization
or group of persons which accept contributions or make expenditures on behalf of
or in opposition to a candidate and exceeding an aggregate of $3,000.00 in any 12
month period. Persons making independent expenditures in Illinois are by
definition committees and subject to substantially similar registration, reporting,
and disclaimer requirements as committees in Wisconsin.
Chapter 351—4.27 of the Iowa Administrative Code sets forth requirements for
registration and reporting of independent expenditures and it applies to any
person, other than a candidate or registered committee, that makes one or more
independent expenditures in excess of $100.00 in the aggregate. 351—4.27, Iowa
Adm. Code. A person subject to filing an independent expenditure statement
must identify the person making the expense and for whom it benefits. 351—
4.27(2), Iowa Adm. Code. There is no requirement to file a statement of
organization registering a committee or public disclosure reports. 351—4.27(7),
Iowa Adm. Code. A disclaimer on communications is required. 351—4.27(6),
Iowa Adm. Code.
Michigan statutes regulate independent expenditures, but the administrative rules
do not specifically address them. Michigan Statutes s. 169.208 provides a
definition for an “independent committee,” which upon exceeding $500.00 in
contributions or expenditures is subject to substantially similar registration,
reporting, and disclaimer requirements as committees in Wisconsin.
Minnesota statutes regulate independent expenditures, but the administrative rules
do not specifically address them.
8. Summary of factual data and analytical methodologies: Adoption of the rule was
predicated on state statutes and federal case law.
9. Analysis and supporting documentation used to determine effect on small
businesses: The rule may have a minimal effect on small businesses that will
participate in receiving contributions or making independent disbursements. The
economic impact of this effect is minor. Businesses may have a filing fee of
$100.00, if the amount of aggregate independent disbursements made in any year
10. Effect on small business: The creation of this rule may have a minimal effect on
small businesses as explained above.
11. Agency contact person: Shane W. Falk, Staff Counsel, Government
Accountability Board, 212 E. Washington Avenue, 3rd Floor, P.O. Box 7984,
Madison, Wisconsin 53707-7984; Phone 266-2094; Shane.Falk@wisconsin.gov
12. Place where comments are to be submitted and deadline for submission:
Government Accountability Board, Attn: Shane W. Falk, 212 E. Washington
Avenue, 3rd Floor, P.O. Box 7984, Madison, Wisconsin 53707-7984, no later than
August 30, 2010.
FISCAL ESTIMATE: The creation of this rule has minimal fiscal effect. There may be
additional registrants filing reports with the Board and potentially additional enforcement
actions that may require staff action. The extent of this potential fiscal impact is
INITIAL REGULATORY FLEXIBILITY ANALYSIS: The creation of this rule does
not affect the normal operations of business.
TEXT OF PROPOSED RULE:
SECTION 1. GAB 1.91 is created to read:
1.91 Organizations Making Independent Disbursements
(1) In this section:
(a) "Contribution" has the meaning given in s. 11.01(6), Stats.
(b) "Disbursement" has the meaning given in s. 11.01(7), Stats.
(c) "Filing officer" has the meaning given in s. 11.01(8), Stats.
(d) "Incurred obligation" has the meaning given in s. 11.01(11), Stats.
(e) “Person” includes the meaning given in s. 990.01(26), Stats.
(f) “Organization” means any person other than an individual, committee, or
political group subject to registration under s. 11.23, Stats.
(g) “Independent” means the absence of acting in cooperation or consultation
with any candidate or authorized committee of a candidate who is supported
or opposed, and is not made in concert with, or at the request or suggestion
of, any candidate or any agent or authorized committee of a candidate who
is supported or opposed.
(h) “Designated depository account” means a depository account specifically
established by an organization to receive contributions and from which to
make independent disbursements.
(2) A corporation, or association organized under ch. 185 or 193, Stats., is a person and
qualifies as an organization that is not prohibited by s. 11.38(1)(a)1., Stats., from
making independent disbursements until such time as a court having jurisdiction in
the State of Wisconsin rules that a corporation, or association organized under ch.
185 or 193, Stats., may constitutionally be restricted from making an independent
(3) Upon accepting contributions made for, incurring obligations for, or making an
independent disbursement exceeding $25 in aggregate during a calendar year, an
organization shall establish a designated depository account in the name of the
organization. Any contributions to and all disbursements of the organization shall
be deposited in and disbursed from this designated depository account. The
organization shall select a treasurer for the designated depository account and no
disbursement may be made or obligation incurred by or on behalf of an organization
without the authorization of the treasurer or designated agents. The organization
shall register with the board and comply with s. 11.09, Stats., when applicable.
(4) The organization shall file a registration statement with the appropriate filing officer
and it shall include, where applicable:
(a) The name, street address, and mailing address of the organization.
(b) The name and mailing address of the treasurer for the designated
depository account of the organization and any other custodian of books
and accounts for the designated depository account.
(c) The name, mailing address, and position of other principal officers of the
organization, including officers and members of the finance committee, if
(d) The name, street address, mailing address, and account number of the
designated depository account.
(e) The registration statement shall be signed by the treasurer for the
designated depository account of the organization and shall contain a
certification that all information contained in the registration statement is
true, correct and complete.
(5) The designated depository account for an organization required to register with the
Board shall annually pay a filing fee of $100.00 to the Board as provided in s.
(6) The organization shall comply with s. 11.05(5), Stats., and notify the appropriate
filing officer within 10 days of any change in information previously submitted in a
statement of registration.
(7) An organization making independent disbursements shall file the oath for
independent disbursements required by s. 11.06(7), Stats.
(8) An organization receiving contributions for independent disbursements or making
independent disbursements shall file periodic reports as provided ss. 11.06, 11.12,
11.19, 11.20 and 11.21(16), Stats., and include all contributions received for
independent disbursements, incurred obligations for independent disbursements,
and independent disbursements made. When applicable, an organization shall also
file periodic reports as provided in s. 11.513, Stats.
(9) An organization making independent disbursements shall comply with the
requirements of §11.30(1); (2)(a) and (d), Wis. Stats., and include an attribution
identifying the organization paying for any communication, arising out of
independent disbursements on behalf of or in opposition to candidates, with the
following words: “Paid for by” followed by the name of the organization and the
name of the treasurer or other authorized agent of the organization followed by
“Not authorized by any candidate or candidate’s agent or committee.”
SECTION 2. EFFECTIVE DATE. This rule shall take effect on the first day of the month
following publication in the Wisconsin administrative register as provided in s. 227.22(2)