a
STATE OF WISCONSIN
GOWRN ME N T AC COU N TABI LI TY BOARD COMPLAIM
FORIVI
Please provide the following information about yourself:
Name
Andrew Craig
Address
4148 N Colgate Cir., Milwaukee,Wl 532t2
TelePhone number
(870) 329-7217
andv.crais@lpwi.ors
State ofWisconsin Before the Government Aecountability Board The Complaint of
Andrew Craiq
Complainant(s) against Respondent, whose
Wisconsin Broadcasters Association
-,
(Insert the applicable sections of law This complaint is under Wis' Ch' 11 in chs. 5 to 12, subchapter III of ch. 13, or subchapter III of ch. 19, if known)
I,
Andrew Graig
, allege
that:
(see next page)
GAB-I100 Revised 4/13
The Wisconsin Broadcasters Association and its subsidiary, the Wisconsin Broadcasters Association Foundation, (together,"the \M.B.A.") is engaged in an effort to illegally conffibute
unpaid advertising on major statewide radio and television networks (the members of the
W.B.A.) to promote the election of ScottWalker and Mary Burke, candidates for Governor of Wisconsin in the 2014 election, and to advocate the defeat of their two general election opponents, Robert Burke of the Libertarian Party and Dennis Fehr of the People's Party. The
W.B.A s effort to promote , orguize, and sponsor
a
promotional advertisement for candidates
Scott Walker and Mary Burke constitutes an in-kind contribution as defined by the GAB and
Wisconsin law, and which does not complywith the limitations on such conffibutions, specifically the provisions that the value of in-kind contributions are subject to the same total aggregate limitation as monetary contributions
(GAB L.20), and that corporations other than
political action committees and political parties are prohibited from making campaign contributions of any sort under Ch. tL.26(2) unless they do so from a special segregated fund subject
to the same aggregate limits, which the W.B.A.
has not registered to do.
The W.B.A., by their own admission, has the goal in sponsoring its televised debate for gubematorial candidates, of promoting the election of the candidates of the Republican and Democratic parties, and the defeat of candidates not running as a member of those parties.In conversations and correspondence on Jun e 26, 2Al4
with canfidate Robert Burke and
complainant Andrew Craig, David Sanks of the W.B.A. stated that the criteria for 2014W.8.A. debate inclusion (Appendix
A) have been created
so as
to secure the participation of the
Republican and Democratic candidates. This was done, according to Mr. Sanks, because it is the
policy of the W.B.A. that they would withdraw their sponsorship of any debate that did not include the candidates of those nvo parties: an explicit admission that promoting those candidates and parties is the goal of the past decade
W.B.A.
debates,
which have been held regularly over the
in every election for U.S. Senator and Governor ofWisconsin, and never included
any candidate not running in one of the W.B.A.'s two preferred political parties. The stated
concern about the Republican or Democratic can&dates possibly declining an invitation to participate in the debate also implicidy hints at the possibility of coordination benareen the
W.B.A. and the campaigns of those candidates. Coordination with
a campaign
to Procure an
illegal contribution in the form of radio and television advertising would itself constitute a serious crime worthy of investigation, as the G.A.B. has made abundandy clear.
By orgarruing this advertisement/debate on behalf of its members, W.B.A.
is
coordinating through itself the contribution of advertising time and resources to the campaigns of Scott Walker and Mary Burke, the presumptive Republican and Democratic candidates in the
20!4
general election (though the same policy and same objections would apply
in the event that
either of those candidates is defeated by another Republican or Democrat in the Aug.12
primary, a possibility regarded
as
unlikely). This would be plainly illegal if done to promote a
single candidate through an hour-long bloc of prime-time statewide broadcasting, yet the text
of
the law provides no grounds for allowing otherwise-illegal contributions on the theory that they are made
lawfulby being provided to multiple candidates in the same election. In-kind
contributions via free advertising which are subject to regulation, have been defined by the GAB and by state and Federal court decisions as messaging which "advocates the election or defeat
of any canfidate" (emphasis added), with no reference to number. Indeed advocating the election of any candidate, is inherently advocating the defeat of their opponents, so any numerical threshold centered on onk advocating with respect to a single candidate would be untenable.
Few things could send a stonger message advocating the defeat of a candidate, than declaring them unworthy of even being heard by the voters in the state's most visible forum for candidates. Selectively giving the imprimatur of "worthy of consideration" and "electable" to candidates, and giving those candidates a unique opportunity to reach large numbers ofvoters, sends a strong message advocating their election,
which is confirmed by the fact that debates are
widely considered to be one of the most crucial opportunities for a candidate to win an election.
The logic of the W.B.A.'s position is circular: some candidates are not widely known to the voters, allegedly, therefore they willbe excluded from the forum allegedly intended to educate the voters about the candidates.
Only
a broadcast debate
which extends an invitation to all four general election
candidates for Governor can satisfy the legal requirement that the extremely valuable and expensive broadcasting time and debate sponsorship, and the corporate resources which go into
them, not be used to promote the election or defeat of any candidate. This is what distinguishes a debate,
which would be legal for corporations to fund and promote as an educational service to
voters, from an electioneering advertisement, which is prohibited unless paid for by legal,
limited, and disclosed contributions to the official campaign committees of the candidates, and which must identify both the candidate and the contributor in the required "paid for by..." disclosure statement included
with the
message.
Failing to enforce the law in this instance would alIow for unlimited corporate in-kind donations to both "major party" candidates but would continue to prohibit such donations
if
engaged in to promote the election of a single "minor purty" candidate, such as that of the
Libertarian P"rty. This is particularly egregious in light of the possibility of a three-candidate election, such as will take place this year for Lt. Governor on a ticket elected jointly with
Governor, and for several other offices. In such an election the excluded candidate could not invoke the same exemption to the law by "debating" another excluded candidate, because there is no such candidate. Such a policywould constitute a violation of the Equal Protection Clause
the 14'h Amendment and the Freedom of Speech Clause of the
l"
of
Amendment, and their
Wisconsin constitutional equivalents, by Sving governmental preference to the viewpoint that supporting multiple candidates is legally advantaged versus supporting a single can&date, and that supporting candidates of the Republican and Democratic parties jointly is legally advantaged versus supporting candidates of other parties.
]f the actions of the W.B.A.
are upheld as lawfirl and its debate proceeds as proposed, the
only equitable result would be to also permit the campaigns of Robert Burke and Dennis Fehr to solicit donations without limit, induding from coqporations, for the PurPose of purchasing an equivalent amount of air time and spending an equivalent amount of funds on producing advertisements.
If the Government Accountability Board
denies the substance of this complaint
and also chooses to denywaiving the enforcement of the law in general, it must articulate a theory under which unlimited and unregulated corporate contributions from the W.B.A. to the campaigns of traro candidates are legal, whereas the exact same sort of contribution from a
different corporation to the campaign of a single candidate would be prohibited.
The W.B.A. protests (in previously mentioned communications with complainant and candidate Burke) that their rules for participation in the advertisement/debate- polling at least l0o/o
andhavtng raised at least $250,000 in reported contributions- are objective criteria that do
not specifically name any candidate or pzrty asbeing eligible or ineligible for inclusion.
It rn y or
may not be tnre that these are "objective" criteria, but that is irrelevant. There is no exception to
the campaign finance laws allowing for in-kind contributions advocating the defeat of candidates who have raised less money than their opponents or who are below a certain threshold in
.rrroffi.i*l opinion polls. This would create an unsupported loophole in the 1aw which would allow any corporation to engage in unlimited in-kind donations so long as they went through the farcical step of selectively writing criteria which only their preferred candidates meet. The
Government Accountability Board and its predecessors have never nrled, and would have no basis for nrling, that contributions are immunizedfromlegal control
if they
are made contingent
on the candidate first meeting performance goals or if they are provided to more than one candidate. A corporation which gave $50,000 to the Scott Walker campaign could not Protect
itself from prosecution by also Sving S50,000 to the Dennis Fehr campaign, proclaiming that they have articulated some standard which those two candidates meet and that Robert Burke and
Mary Burke do not. Yet the W.B.A. proposes that exacdy this theory does protect it, in the
case
of grving tens of thousands of dollars in-kind to both the Republican and Democratic gubernatorial campaigns.
When contacted about these concerns, the W.B.A. asserted classes
a
distinction between two
of candidates, those who have a chance of being elected in the W.B.A.'s estimation and
those who do not. This distinction however has no basis in law, and
if the protections of
Wisconsin law were extended to some candidates and not others, this would constitute a serious constitutional violation.
Finally, a note about who is ultimately responsible for this debate. The W.B.A. has asserted that, as
in the similar debates it has sponsored in the past for U.S. Senator and
,,.
Governor, the valuable broadcasting resources which go into the debate are those of the member stations who choose to accept the broadcast, not the W.B.A. itself. Yet this contradicts the reality that the product of this effort remains the intellectual property of the W.B.A., not its member stations. The nrles for candidate inclusion, the selection of moderators, and the format
of the debate, are all under the control of the W.B.A as the sponsor of the debate. This strongly suggests that the networks are donating their resources to the
W.B.A., which in turn is the
organization using those resources to contribute to campaigns. As it is the transaction between
the contributor and the campaigns that is relevant, and not prior transactions between the contributor and third parties, it would seem correct to state that the W.B.A. rather than the individual broadcasters is the entity to be judged responsible for the debate, that the W.B.A. is its ultimate owner, and that the W.B.A. is liable for any legal violations committed in using this ente{prise to promote the election or defeat of can&dates for office.
The value of the in-kind contribution from the W.B.A. to the Scott Walker and Mary Burke campaigns, includes or will include: the value of the labor and resources which are
expended
in organizing and sponsoring the debate, the value to the participating candidates of
promulgating rules which are designed to ensure the debate will serve
as a
promotional
advertisement for some candidates to the denigration of others, the cost of securing the
participation ofW.B.A. member broadcasters, the cost of securing and compensating participants as moderators and panel members for the debate, the value of the broadcasting time allocated to the W.B.A. debate by radio and television broadcasters, and the value of the
promotional advertisingwhich will encourage voters to watch the debate and make it available to voters through the W.B.A. website after it is broadcast. The fair market value of this
contribution cannot be firlly estimated without
access to
W.B.A. internal documents and still*
undetermined variables such as the location and dateltime of the debate, but taken together this can fairly be assumed to exceed the individual donation
limit by a significant amount, and
is
coming from a prohibited source in the form of the W.B.A., which is neither a political action committee nor political p^W, and which is not funding these efforts out of a registered segregated fund. Given the threshold of $250,000 in reported contributions which the proposes, even for a candidate who meets their polling threshold, the W.B.A.'s
W.B.A.
in-kind
contribution could be regarded as a matching donation to that of the legal contributors to the
official campaign committees. This $250,000 figure is half of the $500,000 threshold which the
W.B.A. originally proposed, which was lowered in response to the objections raised by complainant and candidate Robert Burke. Providing a matching contribution to the candidates, allows the possibility of placing the value of the in-kind contribution as the price set by the
W.B.A. to legal campaign contributors for securing their candidate's presence in the W.B.A.'s advertisement/debate : $250,000 per can&date.
These violations of Wisconsin law could be resolved by the
W.B.A. extending an
invitation to participate in the W.B.A. broadcast debate to all four general election candidates for Governor ofWisconsin, or by withdrawing its sponsorship altogether. These violations could alternately be addressed by the Government Accountability Board in deciding that the
campaigns of all four candidates are now allowed to engage in accepting co{porate
in-kind
donations without limit, as would be allowed for the Republican and Democratic candidates the
W.BA.
debate proceeds as proposcd.
if
In the absence of such a waiver or compliance from the
W.B.A., I request that the Board investigate and take appropriate legal action with regard to these prohibited coqporate
in-kind campaign contributions, in particular by clarifying that
a
broadcast debate or candidates forum which selectivelypromotes certain candidates and excludes
certain other candidates, is a contribution to the participating candidates, advocating their election and the defeat oftheir opponents.
Andrew Craig Deputy Director, Wisconsin Liberty Coalition Libertarian can&date forWisconsin Secretary of State
\.+
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FOUNDATION
Wisconsin Broadcasters Association Foundation Debate Criteria It is our goatto provide a forum to help educate voters on the issues in the campaign. lt is not our responsibility however, to elevate a candidate or to provide a platforrn for a candidate or political party who is seeking publicity and exposure through the debate to introduce them and
their issues to the voters of Wisconsin. The WBA Foundation will sponsor one or more debate{s} in the General Elecfion campaign for Governor in Wisconsin and will invite all candidates who have established themselves as viable
candidates based on the following criteria:
1.
The candidate has won his/her party's Frimary Election, if applicable, and meets each
of
the following criteria:
a.
The candidate has shoum support of at least 10}6 of those polled in a statewide political survey conducted by a recognized and respected political polling firm andlor a recognized and respected sponsoring organization that is released at least 7 days prior to the scheduled debate, and;
b.
The candidate has raised a minimum of S25O,00O in campaign funds as reported in the Pre-Prirnary filing with the Wisconsin Government Accountabili$ Board.
O A D GA S r E t s A i 3 0 c I AT t O H r O U il DAT I O N AFFAIRS PRESERVATION ' EDUCATION HISTORIC ' PUBTIC At t. MrFFl"lN STREf;T #9{rO MADISON, Wl. 537O3 PH. (8001 23t)'1922
w I s c o x 5l N I I
Appendix
B
-
Board of Directors of the Wisconsin Broadcasters Association
as published at www.wi-broadcasters.orqlaFout-usllea-dership/
President & CEO Michelle vette*ind, GE Wisconsin Broadcasters Association Madison
Vice President - Administration Linda Mun \ftIisconsin Broadcasters Association Madison
Chair of the Board Kelly Radandt tllfoodward Commun itation s Appleton/Green Bay
Vice Chair-Television/Chair Ele<t Scott Chorski WKBT-TV
La(rosse Vice Chair-Radio
JeffTyler Clear Channel Media + Entertainment
Madison/Milwaukee
Treasurer Tom Allen
wKow-w Madison
Secretary Dick Record Family Radio
ta Crosse
(retrieved
7l3lt4l
Appendix
B
-
Board of Directors of the Wisconsin Broadcasters Association
as published at www..wi-broadgqstets.orp:/about-us/lqadgrshin/ (retrieved
lmmediate Fast Chair Dean Matmg WSN-TV Milr,vaukee
Dire'ctor Chris kmier Radio Plus Marinette/Fond du lac
Dirtctor Lynn Bieria id-tUest Fami ly Broadcasting Eau Claire M
Dircctor David tuth
\i/xolfl-w La Crosse
Director Keith Eratel Milwaukee Radio Alliance Milwaukee
Director Joseph
lhnk
wFRV-W Green Bay
Director Nancy Douglass WLKG-FM Lake Geneva
7l3lL4l
(Set forth in detail the facts that establish probable cause to believe that a violation has occurred. Be as specifi.c as possible as it relates to dates, times, and infividuals involved. AIso provide the names of individuals who may have information related to the complaint. Use as many separate pages as needed and attach copies of any supporting JUW
Date:
4,2014
gnatu being first duly sworn, on oath, state I, Andrew Craig that I personally read the above complaint, and that the above allegations are and belief,
1-g.s Fse-
I believe them to be true.
s=$*"
<t C-rutl
STATE OF
county
WISCONSIN
)
,, ttl-;hu'-v<l li''
(county of notarization)
to administer oaths)
My commission expires f l-!r 4 or is permanent. Notary Public or (official title if not notary)
(Note: A sworn statement is required for complaints regarding actions of Iocal election officials, pursuant to $5.06, Stats, and regarding violations of the campaign finance laws under Chapter 11, Stats. Complaints regarding violations of other statutes under the Board's jurisdiction are not required to be notarized.) Please send this eompleted form to: By mail, to Wisconsin Government Accountability Board, P.O. Box 7984, Madison, WI 53707-7984; by fax, to 608-267-0500; or by email to gab@wi.gov.
Complaints regarding actions of local election officials pursuant to $5.06, Stats. must also be mailed or personally served on the respondent, and the complainant must certifu to that service in a cover letter to the Board filed with the complaint. GAB-TI"OO
Revised 4/13