A recent move by the Wisconsin State Elections Board may foreshadow a coming trend that bodes ill for issue advocacy—namely, attempts to regulate such activity. On March 10, the board decided to proceed with drafting a new rule that would regulate so-called “issue ads.” The state board’s rule borrows elements of the new definition of “electioneering communications” under federal campaign finance law. Unlike the federal law, however, the Wisconsin rule does not ban corporations, labor unions or nonprofits from paying for these communications. Also unlike the federal version—which covers only radio, television, cable or satellite communications—the state version covers all forms of communications are covered. This is a dramatic expansion from the federal rule. A final draft of the Wisconsin rule is expected to be considered at the board’s May meeting. The initial draft rule is explained in a Memo to Wisconsin Elections Board from Counsel George A. Dunst. The draft rule would apply state disclosure requirements and contribution limits for any communication that “refers to a clearly identified candidate for state or local office” and appears within 30 days of a primary election and 60 days of a general election. So far three parties have submitted comments: The Co-Chairs of the Joint Committee for Review of Administrative Rules within the Wisconsin Assembly told the Election’s Board it does not have the authority to regulate issue advocacy without enabling legislation. However, a bill proposed in the Wisconsin Senate (Senate Bill 12) addresses the same subject. The Wisconsin Democracy Campaign comments commended the board for moving forward but suggested the rule be limited to broadcast and mass mail communications. WDC also recommends an exemption for charities (501(c)(3)) and civic and social welfare (501(c)(4)) groups, newscasts, and announcements of candidate forums in order “to avoid constitutional challenges.” They noted that the Illinois State Board of Elections has a similar rule, but exempts 501(c)(3) groups. (The federal Bipartisan Campaign Reform Act of 2002, or BCRA, also has exemptions for newscasts and candidate forums. In its regulations implementing BCRA, the Federal Elections Commission (FEC) has exempted free broadcasts and communications made pursuant to 501(c)(3) of the tax code. However, United States Reps. Chris Shays (R-CT) and Marty Meehan (D-MA), House sponsors of BCRA, are challenging those exemptions in federal court.) The third set of comments, by Wisconsin Education Association Council opposed the rule, saying the board lacks statutory authority to proceed The council also say the rule goes beyond broadcast advertising, which is all that was addressed by the United States Supreme Court in McConnell v. FEC. The new rulemaking began in January, after the Supreme Court held that it is constitutional to regulate campaign activity that does not use “magic words,” such as “vote for” or “vote against,” if clear definitions of what is and is not regulated are provided. The court also said the government’s interest in preventing corruption must be compelling enough to outweigh the burdens and restrictions election laws impose. Efforts to regulate “sham” issue ads in Wisconsin go back to 1996 when the Wisconsin Manufacturers & Commerce Issues Mobilization Council targeted state legislators in the election. The candidates filed complaints with the Elections Board, which found the ads contained "express advocacy," subjecting them to board rules. However, the courts dismissed the case, since the ads did not contain the "magic words" noted above. Now that the Supreme Court has approved a broader definition of what can be constitutionally regulated (by upholding the electioneering communications definitions), the state is using this broader definition as the basis for its rule.