                               In the

     United States Court of Appeals
                 For the Seventh Circuit

Nos. 12-2915, 12-3046 & 12-3158

WISCONSIN RIGHT TO LIFE , INC ., and
WISCONSIN RIGHT TO LIFE STATE
POLITICAL ACTION COMMITTEE ,
                                               Plaintiffs-Appellants,

                                 v.

THOMAS BARLAND ,* in his official
capacity as Chair and Member of the
Wisconsin Government Accountability
Board, et al.,
                                               Defendants-Appellees.


           Appeals from the United States District Court
                for the Eastern District of Wisconsin.
           No. 10-C-0669 — Charles N. Clevert, Jr., Judge.



     ARGUED JANUARY 18, 2013 — DECIDED MAY 14, 2014


*
  Thomas Barland has resumed the chairmanship of the Government
Accountability Board. Pursuant to Fed. R. App. P. 43(c)(2), we have
substituted him for Timothy Vocke.
2                              Nos. 12-2915, 12-3046 & 12-3158




    Before POSNER, FLAUM , and SYKES, Circuit Judges.
    SYKES, Circuit Judge. This is a sweeping challenge to
Wisconsin’s campaign-finance law in light of Citizens United v.
FEC, 558 U.S. 310 (2010). Wisconsin Right to Life, Inc., and its
State Political Action Committee—its “PAC” for state
elections—sued to block the enforcement of many state statutes
and rules against groups that spend money for political speech
independently of candidates and parties. The complaint alleges
that the challenged laws are vague and overbroad and unjusti-
fiably burden the free-speech rights of independent political
speakers in violation of the First Amendment.
    This is our second encounter with the case. When it was last
here, we addressed a single claim by the Wisconsin Right to
Life State PAC: a challenge to section 11.26(4) of the Wisconsin
Statutes, which caps at $10,000 the aggregate annual amount
a donor may give to state and local candidates, political parties,
and political committees. See Wis. Right to Life State Political
Action Comm. v. Barland (“Barland I”), 664 F.3d 139, 143 (7th Cir.
2011). Applying Citizens United, we held that the aggregate
contribution limit is unconstitutional as applied to organiza-
tions that independently spend money on election-related
speech and permanently enjoined its enforcement against
independent-expenditure groups and their donors. Id. at 155.
Our ruling anticipated the Supreme Court’s recent decision in
McCutcheon v. FEC, 134 S. Ct. 1434 (2014), which more broadly
invalidated the aggregate contribution limit in federal law.
Nos. 12-2915, 12-3046 & 12-3158                                  3

    The case returns on the remaining claims, which target a
dizzying array of statutes and rules, from Wisconsin’s ban on
political spending by corporations to the interlocking defini-
tions that determine state “political committee” status to the
“noncoordination” oath and disclaimer requirements for
independent political messages, to name just a few. The case
comes to us from a decision granting in part and denying in
part the plaintiffs’ motion for a preliminary injunction. The
district court enjoined the ban on corporate political spending,
partially enjoined a regulatory disclaimer rule, and denied the
rest of the motion. The plaintiffs appealed.
    We vacate the court’s order and remand with instructions
to enter a new injunction. First, the present injunction order is
improper in form and must be reentered to conform to the
specificity requirements of Rule 65(d) of the Federal Rules of
Civil Procedure. On the merits, in the domain of campaign-
finance law, the First Amendment requires a heightened
degree of regulatory clarity and a close fit between the
government’s means and its end, and some forms of regulation
are categorically impermissible.
    Like other campaign-finance systems, Wisconsin’s is
labyrinthian and difficult to decipher without a background in
this area of the law; in certain critical respects, it violates the
constitutional limits on the government’s power to regulate
independent political speech. Part of the problem is that the
state’s basic campaign-finance law—Chapter 11 of the Wiscon-
sin Statutes—has not been updated to keep pace with the
evolution in Supreme Court doctrine marking the boundaries
on the government’s authority to regulate election-related
4                              Nos. 12-2915, 12-3046 & 12-3158

speech. In addition, key administrative rules do not cohere
well with the statutes, introducing a patchwork of new and
different terms, definitions, and burdens on independent
political speakers, the intent and cumulative effect of which is
to enlarge the reach of the statutory scheme. Finally, the state
elections agency has given conflicting signals about its intent
to enforce some aspects of the regulatory mélange.
    Whether the agency has the statutory authority to regulate
in this way is a serious question of state administrative law on
which no state court has weighed in. As we explained in
Barland I, the district judge initially abstained in this case to
await a ruling from the Wisconsin Supreme Court on the scope
of the agency’s authority and a possible limiting construction
on one of the rules challenged here. 664 F.3d at 143–45. But the
state high court split evenly, with one justice recused, and the
original action was dismissed without decision. See Wis.
Prosperity Network v. Myse, 810 N.W.2d 356 (Wis. 2012) (per
curiam). So we must take the regulatory scheme as we find it,
testing it against federal constitutional standards.
    Certain statutory provisions—the ban on corporate political
spending and the cap on the amount a corporation may spend
to raise money for an affiliated PAC—are obviously unconsti-
tutional under Citizens United and our decision in Barland I.
Other statutes and rules fail First Amendment standards as
applied to independent political speakers. Some of the chal-
lenged provisions withstand constitutional scrutiny. We will
identify the constitutional infirmities as we move through our
analysis, and on remand a new, permanent injunction should
be entered in accordance with this opinion. One statute—the
Nos. 12-2915, 12-3046 & 12-3158                                 5

24-hour-reporting requirement for late contributions and
expenditures—was recently amended to enlarge the reporting
time to 48 hours. If the plaintiffs want to challenge the amend-
ed statute, they will have to do so in the first instance in the
district court.


                         I. Background
A. The Parties
    Wisconsin Right to Life is a nonprofit corporation with tax-
exempt status as a social-welfare organization under 26 U.S.C.
§ 501(c)(4). Its mission is to advance pro-life positions—
opposition to abortion, euthanasia, and the destruction of
human embryos—in the spheres of ethics, law, and civil
society, and to promote alternatives to these procedures. See
The Mission and Vision of Wisconsin Right to Life, WIS. RIGHT TO
LIFE, http://wrtl.org/mission (last visited May 9, 2014). In
furtherance of this purpose, Wisconsin Right to Life engages in
a range of political speech and public outreach on issues
connected to its mission, including (among other things)
mailings, fliers, information posted on its website, and various
forms of advertising. It also occasionally seeks to participate in
political advocacy in state elections, but Wisconsin law flatly
prohibits it from doing so. See WIS . STAT . § 11.38(1)(a)1 (ban-
ning corporations from making contributions and disburse-
ments for political purposes).
    To avoid violating the statutory ban on election-related
speech by corporations, Wisconsin Right to Life formed an
affiliated PAC that engages in express advocacy in elections for
6                              Nos. 12-2915, 12-3046 & 12-3158

state offices. Wisconsin law prohibits the corporation from
contributing to its PAC. See id. § 11.38(1)(a)2.
    Neither the organization nor its state PAC contributes to
candidates or other political committees, nor are they con-
nected with candidates, their campaign committees, or political
parties. That is to say, they operate independently of candi-
dates and their campaign committees. We refer to the plaintiffs
collectively as “Wisconsin Right to Life” unless the context
requires us to distinguish between the organization and its
PAC.
    The Government Accountability Board was created in 2007
to replace the State Elections Board as the agency responsible
for administering Wisconsin’s campaign-finance and election
laws. See 2007 Wis. Act 1 § 1. Its members are former state
judges appointed by the governor from a nonpartisan slate
nominated by a committee of sitting appellate judges. WIS.
STAT. § 15.60. The Government Accountability Board is not
itself the named defendant: The individual board members are
sued in their official capacities, which amounts to the same
thing. We refer to them collectively as “the GAB” or “the
Board.”
    The GAB has joint enforcement authority with elected
district attorneys to investigate violations of the state election
laws and to prosecute civil violations; district attorneys in each
county have exclusive authority to prosecute criminal viola-
tions. Id. § 5.05(2m). John Chisholm, the Milwaukee County
District Attorney, is also named as a defendant because
Wisconsin Right to Life has its headquarters in Milwaukee
County. Because this is a preenforcement suit, however, our
Nos. 12-2915, 12-3046 & 12-3158                                  7

focus is on the challenged statutes, rules, and other regulatory
activity of the GAB, not on any specific action taken by the
district attorney. So we need not mention Chisholm further,
though he is, of course, bound by the injunction.
                            *    *   *
    Wisconsin Right to Life brought this suit as a comprehen-
sive challenge to Wisconsin’s campaign-finance law in the
wake of Citizens United. The case is sprawling and the briefing
unwieldy, but we have managed to isolate the core constitu-
tional claims. To understand them requires a grasp of the
intricacies of Wisconsin’s campaign-finance system and some
familiarity with its statutory, regulatory, and litigation history.
The chronicle roughly corresponds to important developments
in the Supreme Court’s campaign-finance caselaw, so we’ll
include a discussion of the relevant cases along the way and
come back to them later in the analysis.
   Bear with us. The sweep of this case is very broad. To
decide it requires a legal and political history of minor epic
proportions and a good deal of regulatory detail. We will
radically simplify, but significant length cannot be avoided.


B. Wisconsin’s Campaign-Finance System
    The statutory requirements of Wisconsin’s campaign-
finance system are found in Chapter 11 of the Wisconsin
Statutes, adopted in 1973 following the enactment of the
Federal Election Campaign Act of 1971 (“FECA”), 2 U.S.C.
§§ 431 et seq. Like its federal counterpart, Chapter 11 estab-
lishes an elaborate regulatory regime for campaign finance in
8                               Nos. 12-2915, 12-3046 & 12-3158

state elections, imposing organizational, registration,
recordkeeping, reporting, attribution, and disclaimer duties on
political speakers; the law also sets limits on contributions and
expenditures for election-related activities and communica-
tions. The statutory scheme broadly applies to candidates, their
campaign committees, political parties, independent groups,
and individuals alike.
    “To a lay reader, both statutes [FECA and Chapter 11]
require almost any group that wants to say almost anything
about a candidate or election to register as a political commit-
tee.” Wis. Right to Life, Inc. v. Paradise, 138 F.3d 1183, 1184 (7th
Cir. 1998); see also WIS. STAT . § 11.12(1) (flatly prohibiting
contributions and spending for election-related speech except
to, through, or by an individual or committee that has regis-
tered with and is regulated by the state elections agency). But
the Supreme Court’s decision in Buckley v. Valeo, 424 U.S. 1
(1976), limits what campaign-finance regulators may do. In
Buckley, “[the] Court construed (some would say rewrote) the
federal statute to avoid some of the many constitutional
problems that arise when regulating political speech, the core
of the [F]irst [A]mendment’s domain.” Paradise, 138 F.3d at
1184. “[M]any elements of the Buckley approach are required
by the [F]irst [A]mendment, which means that they apply to
the states.” Id.


    1. Buckley v. Valeo
   We take our first detour into the caselaw to highlight the
doctrine established in Buckley, which addressed a
Nos. 12-2915, 12-3046 & 12-3158                                     9

comprehensive challenge to the 1971 federal law and remains
the Supreme Court’s baseline campaign-finance decision. We
start with the broad foundational principles. Because free-
flowing political debate is “integral to” our system of govern-
ment, “‘there is practically universal agreement that a major
purpose of th[e] [First] Amendment was to protect the free
discussion of governmental affairs, … of course includ[ing]
discussions of candidates.’” Buckley, 424 U.S. at 14 (quoting
Mills v. Alabama, 384 U.S. 214, 218 (1966)).1 This agreement
“reflects our ‘profound national commitment to the principle
that debate on public issues should be uninhibited, robust, and
wide-open.’” Id. (quoting N.Y. Times Co. v. Sullivan, 376 U.S.
254, 270 (1964)). The right to speak freely about political issues,
public policy, and candidates for public office has both
individual and associational aspects and “‘has its fullest and
most urgent application precisely to the conduct of campaigns
for political office.’” Id. at 15 (quoting Monitor Patriot Co. v. Roy,
401 U.S. 265, 272 (1971)).
    To implement this vital constitutional protection, Buckley
narrowed the reach of FECA and announced some limiting
principles applicable to all campaign-finance laws. First, the
government’s authority to regulate in this area extends only to
money raised and spent for speech that is clearly election
related; ordinary political speech about issues, policy, and
public officials must remain unencumbered. See id. at 42–44; see
also id. at 78–80.



1
 The First Amendment provides that “Congress shall make no law …
abridging the freedom of speech.” U.S. C O N ST . amend. I.
10                              Nos. 12-2915, 12-3046 & 12-3158

    Second, because political speech is at the core of the First
Amendment right, overbreadth and vagueness concerns loom
large in this area, especially when the regulatory scheme
reaches beyond candidates, their campaign committees, and
political parties. To protect against an unconstitutional chill on
issue advocacy by independent speakers, Buckley held that
campaign-finance regulation must be precise, clear, and may
only extend to speech that is “unambiguously related to the
campaign of a particular federal candidate.” Id. at 80. To put
the point differently, “‘[b]ecause First Amendment freedoms
need breathing space to survive, government may regulate in
[this] area only with narrow specificity.’” Id. at 41 n.48 (quoting
NAACP v. Button, 371 U.S. 415, 433 (1963)).
    The 1971 law was both too uncertain and too broad to
satisfy the constitutional requirements of clarity and precision;
Buckley held that the “constitutional deficiencies [of vagueness
and overbreadth] … can be avoided only by reading [the
federal statute] as limited to communications that include
explicit words of advocacy of election or defeat of a candidate.”
Id. at 43 (emphasis added). In other words, the First Amend-
ment forbids the government from regulating political expres-
sion that does not “in express terms advocate the election or
defeat of a clearly identified candidate.” Id. at 44.
    Applying this limiting principle to FECA’s disclosure
requirements for independent political expenditures, the Court
gave the federal statute a narrowing construction, holding that
the disclosure duties could be triggered only when “funds [are]
used for communications that expressly advocate the election
or defeat of a clearly identified candidate.” Id. at 80. In a
Nos. 12-2915, 12-3046 & 12-3158                                  11

famous footnote, the Court listed some examples of express
advocacy: “vote for,” “elect,” “support,” “cast your ballot for,”
“Smith for Congress,” “vote against,” “defeat,” and “reject.” Id.
at 44 n.52. These are the Buckley “magic words.”
    The Court also narrowed the scope of “political committee”
status to reach only groups that engage in election advocacy as
their major purpose. Id. at 79–80. This, too, was an application
of the constitutional-avoidance doctrine to address vagueness
and overbreadth concerns. Political-committee status carries a
complex, comprehensive, and intrusive set of restrictions and
regulatory burdens. See 2 U.S.C. §§ 433, 434(a)–(b),
441a(a)(1)(C), 441b(a). Buckley held that “[t]o fulfill the pur-
poses of the Act[,] [the definition of political committee] need
only encompass organizations that are under the control of a
candidate or the major purpose of which is the nomination or
election of a candidate.” 424 U.S. at 79. Expenditures by
political committees “so construed” clearly “fall within the core
area sought to be addressed by Congress. They are, by defini-
tion, campaign related.” Id.
    Finally, the Court drew a distinction between restrictions
on expenditures for election-related speech and restrictions on
contributions to candidates. Buckley held that limits on contribu-
tions are reviewed under an intermediate standard of scrutiny
and may be permissible based on the public interest in prevent-
ing quid pro quo corruption, but limits on expenditures get
strict scrutiny and usually flunk. See id. at 25–27, 55–56; see also
Barland I, 664 F.3d at 152–53. The distinction drawn in Buckley
between expenditures and contributions may be eroding—and
with it the different standards of review—but for now these
12                             Nos. 12-2915, 12-3046 & 12-3158

categories remain. See McCutcheon, 134 S. Ct. at 1445 (opinion
of Roberts, C.J.) (“[W]e see no need in this case to revisit
Buckley’s distinction between contributions and expenditures
and the corollary distinction in the applicable standards of
review.”); see also id. at 1462–65 (Thomas, J., concurring in
judgment) (calling for strict scrutiny of contribution limits).
                           *   *   *
    As originally enacted, Chapter 11 of the Wisconsin Statutes
contained many of the same constitutional infirmities as the
federal statute. Soon after the Buckley decision was released,
the Attorney General of Wisconsin issued an opinion to the
State Elections Board—the predecessor to the GAB—advising
it that some parts of Chapter 11 were unconstitutional and
others must be narrowly construed. See 65 Op. Att’y Gen. Wis.
145 (1976); see also Paradise, 138 F.3d at 1185. Chapter 11 was
thereafter amended to incorporate Buckley’s express-advocacy
limiting principle. See Elections Bd. v. Wis. Mfrs. & Commerce,
597 N.W.2d 721, 727–28 (Wis. 1999).


     2. Chapter 11
    The various prescriptions and proscriptions in Chapter 11
apply to candidates, individuals, and political committees,
broadly defined. A “committee” or “political committee” (the
terms are used interchangeably) is “any person other than an
individual and any combination of 2 or more persons, perma-
nent or temporary, which makes or accepts contributions or makes
disbursements, whether or not engaged in activities which are
Nos. 12-2915, 12-3046 & 12-3158                                         13

exclusively political.” WIS. STAT . § 11.01(4) (emphasis added).2
Like its federal counterpart, Chapter 11 is structured so that
political-committee status is determined indirectly, by the
making or acceptance of “contributions” or the making of
“disbursements” (called “expenditures” in the federal law). See
id.; see also 2 U.S.C. § 431(4) (defining “political committee”). In
state law, as in FECA, this status triggers complicated and
burdensome regulatory restrictions and requirements, so
defining “committee” in this way brings Buckley’s vagueness
and overbreadth concerns into play.
    Committees under Chapter 11 can be general or specific,
and connected to or independent of candidates, parties, or
partisan legislative caucuses. Specific varieties mentioned in
the statute include personal campaign committees, legislative
campaign committees, support committees, political party
committees, and “special interest” committees. See WIS. STAT .
§ 11.05(3). A personal campaign committee is just what it
sounds like: a political committee operated by a candidate or
with the candidate’s authorization. See id. § 11.01(15). Legisla-
tive campaign committees are party committees “organized in
either house of the legislature to support candidates of a
political party for legislative office.” Id. § 11.01(12s). Other
committee types are left undefined.3



2
 The general statutory definition of “person” includes “all partnerships,
associations and bodies politic or corporate.” W IS . S TAT . § 990.01(26).

3
  As in federal campaign-finance jargon, state political committees are
sometimes colloquially referred to as “PACs.”
14                              Nos. 12-2915, 12-3046 & 12-3158

    Chapter 11 provides that “every committee other than a
personal campaign committee which makes or accepts contri-
butions, incurs obligations, or makes disbursements in a
calendar year in an aggregate amount in excess of $25” must
register with the state elections agency. Id. § 11.05(1) (establish-
ing the general registration requirement). Candidates and their
personal campaign committees have an absolute duty to
register; there is no expenditure or disbursement threshold. See
id. § 11.05(2g). Individuals also must register if they “accept[]
contributions, incur[] obligations, or make[] disbursements in
a calendar year in an aggregate amount in excess of $25 to
support or oppose the election or nomination of a candidate.”
Id. § 11.05(2).
    The dollar threshold for registration was recently raised
and is now $300—still a very modest amount. See 2013 Wis. Act
153 §§ 5, 6, 9 (effective Mar. 29, 2014). The remaining criteria
for registration are unaffected by the recent legislation.
    Registration carries certain organizational prerequisites.
Committees must appoint a treasurer. (Individual registrants
are considered their own treasurers.) WIS. STAT . § 11.10(3). The
treasurer is personally liable for violations of the reporting
duties and other requirements of the regulatory system. Id.
§ 11.20(13). Committees (individual registrants too) must
maintain a separate depository account, id. § 11.14(1), keep
detailed records of all contributions and disbursements
exceeding $10, id. § 11.12(3), and maintain those records for a
minimum of three years, id. No financial activity may occur
without a registered treasurer in place, and all financial activity
Nos. 12-2915, 12-3046 & 12-3158                                                    15

requires authorization of the treasurer or his designated agent.
Id. § 11.10(3).
    Registration entails filing a document with the state
elections agency containing the committee’s name and address;
the name and address of the treasurer and any other principal
officers; the account number and location of the depository
account; and a statement identifying the purpose of the
committee. See id. § 11.05(3). Changes to this information must
be reported within ten days. Id. § 11.05(5). Other than candi-
dates and personal campaign committees, every registrant
must pay an annual fee of $100, but the fee can be waived if in
a calendar year the committee does not make disbursements
exceeding $2,500. Id. § 11.055(1), (3).
    All registrants—candidates, their committees, party
committees, independent committees, and individuals—must
file frequent, detailed reports disclosing all financial activity.
See id. § 11.06. The extent of the reporting burden is important
here; we will come back to this point in a moment.
    A committee making “independent disbursements” must
file an oath with the registration statement affirming that
disbursements are not coordinated with any candidate or
candidate’s agent. Id. § 11.06(7)(a).4 The oath must be refiled


4
    The full oath provision is as follows:

           O ATH FO R IN D EPEN D EN T D ISBU RSEM EN TS . (a) Every commit-
           tee, other than a personal campaign committee, which and
           every individual, other than a candidate who desires to
           make disbursements during any calendar year, which are
                                                                        (continued...)
16                                      Nos. 12-2915, 12-3046 & 12-3158

every calendar year and amended “whenever there is a change
in the candidate or candidates to whom it applies.” Id.
§ 11.06(7)(b).
   Registrants have a continuing duty to open their books to
public inspection: All financial activity must be disclosed to the


4
    (...continued)
            to be used to advocate the election or defeat of any clearly
            identified candidate or candidates in any election shall
            before making any disbursement [in excess of $25] … , file
            with the registration statement under s. 11.05 a statement
            under oath affirming that the committee or individual
            does not act in cooperation or consultation with any
            candidate or agent or authorized committee of a candidate
            who is supported, that the committee or individual does
            not act in concert with, or at the request or suggestion of,
            any candidate or any agent or authorized committee of a
            candidate who is supported, that the committee or individ-
            ual does not act in cooperation or consultation with any
            candidate or agent or authorized committee of a candidate
            who benefits from a disbursement made in opposition to
            a candidate, and that the committee or individual does not
            act in concert with, or at the request or suggestion of, any
            candidate or agent or authorized committee of a candidate
            who benefits from a disbursement made in opposition to
            a candidate. A committee which or individual who acts
            independently of one or more candidates or agents or
            authorized committees of candidates and also in coopera-
            tion or upon consultation with, in concert with, or at the
            request or suggestion of one or more candidates or agents
            or authorized committees of candidates shall indicate in
            the oath the names of the candidates or candidates to
            which it applies.

W IS . S TAT . § 11.06(7)(a).
Nos. 12-2915, 12-3046 & 12-3158                                17

government in regular periodic filings. Chapter 11 requires
registrants to file detailed reports with the state elections
agency at specified intervals throughout the year describing all
financial activity since the last report, including “all contribu-
tions received, contributions or disbursements made, and
obligations incurred.” Id. § 11.06(1). For contributions received
in excess of $20, the report must include the date of the
contribution, the name and address of the contributor, and “the
cumulative total contributions made by that contributor for the
calendar year.” Id. § 11.06(1)(a). For contributions received in
excess of $100, the registrant must obtain and report the name
and address of the donor’s place of employment. Id.
§ 11.06(1)(b). All other income in excess of $20—including
transfers of funds, interest, returns on investments, rebates,
and refunds received—must be listed and described. Id.
§ 11.06(1)(c)–(d).
    Registrants must report all disbursements. For every
disbursement in excess of $20, the registrant must include the
name and address of the recipient, the date of the disburse-
ment, and a statement of its purpose. Id. § 11.06(1)(g). Individu-
als and committees “not primarily organized for political
purposes” need only report disbursements made for the
purpose of “expressly advocat[ing] the election or defeat of a
clearly identified candidate.” Id. § 11.06(2). In other words,
committees in this category need not report general operating
expenses; for all other committees, “administrative and
overhead expenses” must be reported as disbursements. See id.
§ 11.01(16). All disbursements that count as contributions to
candidates or other committees must be reported. See id.
§ 11.06(2).
18                              Nos. 12-2915, 12-3046 & 12-3158

    Finally, each financial report must itemize the following:
(1) total contributions made, contributions received, and
disbursements made during the reporting period and cumula-
tively year-to-date (including reporting-period and cumulative
year-to-date totals for individual donors and recipients); (2) the
balance of obligations incurred as of the end of the reporting
period; and (3) the registrant’s cash on hand at the beginning
and end of the reporting period. Id. § 11.06(1)(i), (k), (L) & (m).
Committees and individuals making independent disburse-
ments (expenditures made independently of candidates and
their campaign committees) also must include “a separate
schedule showing for each disbursement which is made
independently of a candidate … the name of the candidate or
candidates on whose behalf or in opposition to whom the
disbursement is made, indicating whether the purpose is
support or opposition.” Id. § 11.06(1)(j).
    Financial reports are due in January and July of every year.
Registrants also must file “preprimary” and “preelection”
reports on specified dates before the spring primary and spring
general election and before the fall primary and fall general
election, bringing the total to as many as six reports a year
depending on the election calendar. Id. § 11.20. When a
committee disbands, it must file a termination report. Id.
§ 11.19(1). Registrants may file a suspension report if there will
be no disbursements, contributions, or obligations in the
aggregate of more than $1,000 in a calendar year, but the
suspension is effective only for the calendar year in which it is
approved by the elections agency. Id. § 11.19(2).
Nos. 12-2915, 12-3046 & 12-3158                                              19

    Other restrictions and requirements apply, but we’ll pause
here to catch our breath and summarize. Under Chapter 11 any
group that makes or receives a “contribution,” incurs an
“obligation,” or makes a “disbursement” in excess of $300 in a
calendar year is treated as a political committee. (Individuals
are covered too, but we’re mostly concerned with Chapter 11’s
application to organizational associations.) Committee status
triggers substantial and continuous organizational, registra-
tion, and recordkeeping requirements, and compliance is
required before any money is spent for election-related speech;
the periodic reporting duties kick in immediately thereafter.
   So the whole regulatory system turns on what counts as a
“contribution,” “obligation,” or “disbursement.” Chapter 11
defines all three terms very broadly to include anything of
value given or spent “for political purposes.”5 That all-
important phrase is defined as follows:



5
  M ore specifically, “contribution” means “[a] gift, subscription, loan,
advance, or deposit of money or anything of value [except a loan from a
commercial lending institution] … made for political purposes.” W IS . S TAT .
§ 11.01(6)(a) (emphasis added). An “incurred obligation” means “every
express obligation … including every loan, guarantee of a loan or other
obligation or payment for any goods, or for any services … incurred by a
candidate, committee[, or] individual … for political purposes.” Id. § 11.01(11)
(emphasis added). A “disbursement” means a “purchase, payment,
distribution, loan, advance, deposit, or gift of money or anything of value
[except a loan from a commercial lending institution] … , [or a ‘contract,
promise, or agreement’ to do any of these things] made for political purposes.”
Id. § 11.01(7)(a) (emphasis added).
20                               Nos. 12-2915, 12-3046 & 12-3158

           (16) An act is for “political purposes” when it
       is done for the purpose of influencing the election or
       nomination for election of any individual to state
       or local office, for the purpose of influencing the
       recall from or retention in office of an individual
       holding a state or local office, for the purpose of
       payment of expenses incurred as a result of a
       recount at an election, or for the purpose of influ-
       encing a particular vote at a referendum. …
           (a) Acts which are for “political purposes” include
       but are not limited to:
           1. The making of a communication which ex-
       pressly advocates the election, defeat, recall or reten-
       tion of a clearly identified candidate or a particular
       vote at a referendum.
Id. § 11.01(16) (emphases added).
    The “express advocacy” language we have italicized above
was added to comply with the requirements laid down in
Buckley. See Wis. Mfrs. & Commerce, 597 N.W.2d at 727–28. The
effect of this limiting language was to place issue advo-
cacy—political ads and other communications that do not
expressly advocate the election or defeat of a clearly identified
candidate—beyond the reach of the regulatory scheme. Id. at
729–31; see also WIS. ADMIN . CODE EL BD § 1.28 (1977); 65 Op.
Att’y Gen. at 152–54.
   A few of Chapter 11’s other requirements and restrictions
are directly or indirectly implicated here. Anonymous dis-
bursements are prohibited. Any advertisement or other
Nos. 12-2915, 12-3046 & 12-3158                              21

communication by a political committee must contain an
attribution specifically including the words “Paid for by”
followed by the name of the committee and its treasurer. WIS.
STAT. § 11.30(2)(b). Advertisements and other communications
by independent committees must carry an additional dis-
claimer: “Not authorized by any candidate or candidate’s
agent or committee.” Id. § 11.30(2)(d). A related administrative
rule requires that any “political message” by an individual or
group acting independently of a candidate contain a much
wordier disclaimer:
       The committee (individual) is the sole source of
       this communication and the committee (individ-
       ual) did not act in cooperation or consultation
       with, and 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 by this communication.
WIS. ADMIN . CODE GAB § 1.42(5).
   Contribution limits apply. Earlier in this case we addressed
one of them—section 11.26(4), the $10,000 aggregate annual
cap on contributions to candidates and committees—and
found it unconstitutional under Citizens United as applied to
contributions to independent groups. Barland I, 664 F.3d at 155.
Separately, subsections 11.26(1) and (2) impose specific dollar
limits on contributions to candidates, their personal campaign
committees, and any independent committee “acting solely in
support of such a candidate or solely in opposition to the
candidate’s opponent.”
22                              Nos. 12-2915, 12-3046 & 12-3158

    Finally, like the federal statute at issue in Citizens United,
Chapter 11 bans all political speech by corporations: No
corporation may “make any contribution or disbursement,
directly or indirectly, either independently or through any
political party, committee, group, candidate or individual.”
WIS. STAT . § 11.38(1)(a)1. A corporation may, however, create
a separate segregated fund for election-related speech, which
has the status of a political committee and must register and
report as such. Id. § 11.38(1)(a)2. The corporation may “solicit
contributions from individuals to the fund … for the purpose
of supporting or opposing any candidate for state or local
office,” but the corporation itself may not contribute to the
fund. Id. Until recently, Chapter 11 also provided that no
corporation may spend “more than a combined total of $500
annually for solicitation of contributions” to its segregated
fund (i.e., to its affiliated PAC). Id. § 11.38(1)(a)3. The spending
limit on fundraising by corporations for affiliated PACs was
recently raised to $20,000 or 20% of the amount the committee
raised the previous year. See 2013 Wis. Act 153 § 21m.


C. Chapter 11 in the Courts
    Although Chapter 11 has been on the books for more than
40 years, the Wisconsin Supreme Court has addressed it only
twice. In Gard v. State Elections Board, 456 N.W.2d 809, 826–29
(Wis. 1990), the court upheld the limits on contributions to
candidates, relying on the distinction drawn in Buckley between
campaign contributions and expenditures. More relevant is
Elections Board v. Wisconsin Manufacturers & Commerce, a major
Nos. 12-2915, 12-3046 & 12-3158                                23

test of the scope of the state’s regulatory authority under
Buckley.


   1. Elections Board v. Wisconsin Manufacturers &
   Commerce
    In the fall of 1996, an affiliate of Wisconsin Manufacturers &
Commerce, Inc. (“WMC”), the state’s largest business group,
sponsored radio and television ads naming several state
legislators who were on the November ballot. The ads were the
kind that have become ubiquitous in each election cycle ever
since Buckley drew the regulatory line at express advocacy. The
narrator described the legislators’ voting records on particular
issues—specifically, on the issues of taxes and crime—and
urged listeners to call the lawmakers and voice their disap-
proval. Wis. Mfrs. & Commerce, 597 N.W.2d at 724–25.
    The targeted legislators waged a two-front legal battle to
force the ads off the air. First, they filed administrative com-
plaints with the State Elections Board; second, they sued WMC
and its affiliate seeking court orders enjoining the ads. Id. at
725; see also WIS. STAT . § 11.66 (authorizing private suits by
electors to compel compliance with Chapter 11). The litigation
strategy was successful. Trial judges around the state ordered
the WMC affiliate to remove the ads from the air. Wis. Mfrs. &
Commerce, 597 N.W.2d at 725.
   When the election was over, the Elections Board took up
the administrative complaints, classified the ads as express
advocacy under Chapter 11, and ordered the affiliate to
register as a political committee and file retrospective and
24                              Nos. 12-2915, 12-3046 & 12-3158

prospective financial reports. Id. Predictably, the organization
refused to comply, so the Board filed an enforcement action
seeking per diem monetary penalties and injunctive relief. Id.
at 725–26. The trial court dismissed the case, holding that the
Board’s approach to the express-advocacy classification was
unconstitutionally ad hoc and vague, amounted to retroactive
rulemaking, and was not adequately tailored to satisfy First
Amendment scrutiny. Id. at 726.
    The state supreme court affirmed, but on the narrowest
ground. The court held that the Board had impermissibly
engaged in retroactive rulemaking by “creating and attempting
to apply [a] new, context-oriented interpretation of the
statutory term express advocacy” while adjudicating an
administrative complaint. Id. at 735. The court agreed with the
trial judge that “it would be profoundly unfair to apply a
previously unarticulated test, retroactively, to these defen-
dants.” Id.
    Having decided the case on this procedural ground, the
court specifically declined to “craft a new standard of express
advocacy for the state of Wisconsin,” leaving that task to the
legislature or the Board. Id. at 736. But the court offered some
guidance regarding the permissible scope of any standard the
legislature or agency might write. First, “Buckley stands for the
proposition that it is unconstitutional to place reporting or
disclosure requirements on communications which do not
‘expressly advocate the election or defeat of a clearly identified
candidate.’” Id. at 731 (quoting Buckley, 424 U.S. at 80). Next, to
qualify as “express advocacy” within the meaning of
section 11.01(16), a communication “must contain explicit
Nos. 12-2915, 12-3046 & 12-3158                                25

language advocating the election or defeat of a candidate who
is clearly identified.” Id. Finally, the court allowed that any
statutory or regulatory definition of express advocacy “may
encompass more than the specific magic words in Buckley
footnote 52,” but reminded legislators and regulators that the
definition must be “limited to communications that include
explicit words of advocacy of election or defeat of a candidate.”
Id. at 737 (internal quotation marks omitted).


   2. Campaign Finance Reform Is Tried and Fails in
   Wisconsin
    Wisconsin Manufacturers & Commerce was decided in July
1999. The Elections Board thereafter amended its existing
administrative rule regarding the scope of regulated campaign
activity to conform to the state supreme court’s guidance on
the meaning of express advocacy. See EL BD § 1.28 (2001). At the
same time, however, state campaign-finance reformers were
hard at work trying to move a proposal through the state
legislature expanding the regulatory scheme to cover issue ads
like those targeted in Wisconsin Manufacurers & Commerce. In
due course they succeeded, though as we’ll see, their victory
was short-lived.
    In 2001 the legislature adopted major amendments to
Chapter 11 broadening the definition of “political purposes” to
cover issue ads and other communications naming a candidate
in the lead-up to an election and otherwise expanding the
scope of the state’s regulation of political speech. 2001 Wis. Act
109; see Wis. Realtors Ass’n v. Ponto (“Wis. Realtors I”),
26                             Nos. 12-2915, 12-3046 & 12-3158

229 F. Supp. 2d 889, 890–91 (W.D. Wis. 2002). Under the new
law, any communication made within 60 days of an election
that “‘includes a reference to … a clearly identified candidate’”
qualified as a communication made for political purposes, thus
triggering political-committee status and the full range of
proscriptions and prescriptions in Chapter 11. Wis. Realtors
Ass’n v. Ponto (“Wis. Realtors II”), 233 F. Supp. 2d 1078, 1083–84
(W.D. Wis. 2002) (quoting 2001 Wis. Act 109 § 1ty).
    This expansion of the regulatory system was not designed
to stick. The legislature included a nonseverability clause and
a fairly obvious poison pill. Section 1uck (yes, you read that
correctly) prohibited independent groups from sponsoring any
communications that referred to a candidate within 30 days of
an election without first filing a report with the Elections Board
providing “‘the name of each candidate who will be supported
or whose opponent will be opposed and the total disburse-
ments to be made.’” Id. at 1090 (quoting 2001 Wis. Act 109
§ 1uck ) (emphasis omitted). Failure to file the minimum 31-day
notice meant a total speech blackout: no political communica-
tions allowed in the final month of the campaign. Id.
    Before the ink was dry on the governor’s signature, the new
law was challenged in state and federal court. See Wis.
Realtors I, 229 F. Supp. 2d at 891. The constitutional cloud over
the legislature’s handiwork was so conspicuous that lawmak-
ers included a nonstatutory provision directing the Attorney
General to “promptly commence” an original action in the
state supreme court asking the justices to decide whether the
law was unconstitutional. Id. As it turned out, the federal court
reached judgment first, striking down the advance-notice
Nos. 12-2915, 12-3046 & 12-3158                                          27

provision as an unconstitutional form of prior restraint on
speech. Wis. Realtors II, 233 F. Supp. 2d at 1090–93. By opera-
tion of the nonseverability clause, the new law was invalid in
its entirety. Id. at 1093; see also Wis. Right to Life, Inc. v. Schober,
366 F.3d 485, 487–88 (7th Cir. 2004) (describing this history).
                                *    *    *
    Since the ill-fated 2001 law, legislative support for more
regulation of political speech has evaporated. New efforts to
enlarge the scope of Chapter 11 have consistently failed to get
off the ground.6 Instead, the momentum runs in the opposite
direction. The most recent statutory amendments are modestly
deregulatory: The legislature raised the monetary threshold for
PAC status (at $300, it’s still quite low), loosened restrictions on
contributions by lobbyists, and created an exemption for
certain uncompensated political activity on the Internet. See
2013 Wis. Act 153.


D. Important Federal Developments
    As Wisconsin’s campaign-finance reform movement was
collapsing, Congress enacted the Bipartisan Campaign Reform
Act of 2002—“BCRA” for short, but better known as the
“McCain-Feingold” law for its principal Senate sponsors. Pub.
L. No. 107-155, 116 Stat. 81. (codified at 2 U.S.C. §§ 438a, 441a–

6
 A nonexhaustive list of failed campaign-finance reform bills includes
2005 Assembly Bill 392; 2005 Senate Bill 538; 2007 Senate Bill 1, Dec. Spec.
Sess.; 2007 Senate Bill 12; 2007 Senate Bill 77; 2007 Senate Bill 182;
2007 Assembly Bill 272; 2007 Assembly Bill 355; 2007 Assembly Bill 704;
2009 Senate Bill 221; 2009 Assembly Bill 388; and 2009 Assembly Bill 812.
28                            Nos. 12-2915, 12-3046 & 12-3158

441i, 441k). McCain-Feingold brought a subset of issue advo-
cacy into the federal regulatory sphere, introducing a new
category of regulated political speech: “electioneering
communication[s],” defined as “any broadcast, cable, or
satellite communication” that “refers to a clearly identified
candidate for Federal office” and appears within 60 days of a
federal general election or 30 days of a federal primary
election. 2 U.S.C. § 434(f)(3)(A).
    Among other things, McCain-Feingold prohibited corpora-
tions and labor unions from making contributions or expendi-
tures for electioneering communications; express advocacy by
corporations and unions was already banned. See id. § 441b.
The new law also established a limited disclosure requirement
for expenditures for electioneering communications in excess
of $10,000 in a calendar year. At that level of spending, the
sponsoring group must file a statement with the Federal
Election Commission disclosing its identity and place of
business, some basic information about the expenditure (the
amount and to whom it was paid), the election to which the
expenditure pertains, and the identity of donors who contrib-
uted $1,000 or more for the electioneering communications. Id.
§ 434(f)(1)–(2). In most cases the disclosure statement is due
within 24 hours of a qualifying expenditure above the statutory
threshold. Id. § 434(f)(1), (4).


     1. McConnell v. FEC
   BCRA largely survived its first constitutional test in
McConnell v. FEC, 540 U.S. 93 (2003). As relevant here, the
Supreme Court rejected a facial challenge to the ban on
Nos. 12-2915, 12-3046 & 12-3158                                          29

corporate sponsorship of electioneering communications,
explaining that the express-advocacy line drawn in Buckley was
“an endpoint of statutory interpretation, not a first principle of
constitutional law.” Id. at 190. Still, the Court acknowledged
that the limitation was “born of an effort to avoid [the] consti-
tutional infirmities” of vagueness and overbreadth, id. at 192,
so the ultimate holding in McConnell was narrow: The federal
ban on corporate electioneering communications was facially
valid, but only “to the extent that … issue ads during the 30-
and 60-day periods … are the functional equivalent of express
advocacy,” id. at 206 (emphasis added).
    This left the door open for as-applied challenges. But the
Court did not explain what it meant by “functional equiva-
lence.” Instead, it simply “assume[d] that the interests that
justify the regulation of campaign speech might not apply to
the regulation of genuine issue ads.” Id. at 206 n.88. The
concept of “functional equivalence” acquired some content a
few years later when the ban on corporate electioneering
communications returned to the Court, this time in the context
of an as-applied challenge brought by our plaintiff here. See
FEC v. Wis. Right To Life, Inc. (“Wis. Right to Life II”), 551 U.S.
449, 455–57 (2007).7




7
  In an earlier decision in the same litigation— commonly referred to as
“Wisconsin Right to Life I”— the Court clarified that McConnell did not
foreclose as-applied challenges to the federal ban on corporate electioneer-
ing communications. See Wis. Right to Life, Inc. v. FEC, 546 U.S. 410, 412
(2006) (per curiam).
30                              Nos. 12-2915, 12-3046 & 12-3158

     2. Wisconsin Right to Life II
    In the summer of 2004, Wisconsin Right to Life prepared
television and radio ads criticizing the filibuster of federal
judicial nominees and began to broadcast them in early
August. Id. at 458–59. The ads named Wisconsin’s senators and
urged listeners to call and tell them to oppose the filibuster. Id.
But BCRA’s blackout period before the federal primary
election commenced on August 15, so Wisconsin Right to Life
sought declaratory and injunctive relief against the speech ban
as applied to issue ads of this type. Id. at 460.
    The Supreme Court held that Wisconsin Right to Life could
not be prohibited from using its general treasury funds to
sponsor these ads, but the decision was fractured. Of the five
justices in the majority, three would have overruled McConnell
to the extent that it had facially upheld the ban on corporate
electioneering communications. See id. at 483–504 (Scalia, J.,
concurring in part and concurring in the judgment, joined by
Kennedy and Thomas, J.J.). Chief Justice Roberts, joined by
Justice Alito, took a narrower path, concluding that the ads
were neither express advocacy nor its functional equivalent
and thus could not be banned. Id. at 476–82 (opinion of
Roberts, C.J.)
    The Chief Justice explained that “[p]rior to BCRA, corpora-
tions were free under federal law to use independent expendi-
tures to engage in political speech so long as that speech did
not expressly advocate the election or defeat of a clearly
identified federal candidate.” Id. at 457. But BCRA “ma[de] it
a federal crime for any corporation to broadcast, shortly before
an election, any communication that names a federal candidate
Nos. 12-2915, 12-3046 & 12-3158                                31

for elected office and is targeted to the electorate.” Id. at
455–56. The law had “survive[d] strict scrutiny [in McConnell]
to the extent it regulates express advocacy or its functional
equivalent,” id. at 465, so if the antifilibuster ads were express
advocacy or its equivalent, that holding controlled unless
revisited and overruled, id. If, on the other hand, the ads were
not express advocacy or its equivalent—i.e., if they were
“genuine issue ads”—then McConnell did not apply. Id.
    “Express advocacy” had an established meaning under
Buckley, but the concept of “functional equivalence” was new.
It was not clear how to determine on a case-by-case basis
whether a particular communication counted as the functional
equivalent of express electoral advocacy. The Chief Justice
provided a test: “[A]n ad is the functional equivalent of express
advocacy only if the ad is susceptible of no reasonable interpre-
tation other than as an appeal to vote for or against a specific
candidate.” Id. at 469–70. His lead opinion also provided a
framework for applying the test: (1) [T]he inquiry “must be
objective, focusing on the substance of the communication
rather than amorphous considerations of intent and effect,” id.
at 469; (2) “contextual factors … should seldom play a signifi-
cant role in the inquiry,” id. at 473–74; (3) because the govern-
ment has the burden of justifying restrictions on political
speech, the speaker gets the benefit of any doubt, id. at 464–65;
and (4) if an ad “may reasonably be interpreted as something
other than as an appeal to vote for or against a specific candi-
date, … [then it is] not the functional equivalent of express
advocacy,” id. at 476.
32                             Nos. 12-2915, 12-3046 & 12-3158

   On this understanding of functional equivalence, the Chief
Justice held that the antifilibuster ads
       are plainly not the functional equivalent of
       express advocacy. First, their content is consis-
       tent with that of a genuine issue ad: The ads
       focus on a legislative issue, take a position on the
       issue, exhort the public to adopt that position,
       and urge the public to contact public officials
       with respect to the matter. Second, their content
       lacks indicia of express advocacy: The ads do not
       mention an election, candidacy, political party,
       or challenger; and they do not take a position on
       a candidate’s character, qualifications, or fitness
       for office.
Id. at 470. Because the ads were neither express advocacy nor
its equivalent, McConnell did not apply and the government
had to justify restricting the speech under strict scrutiny. It
could not do so. The ban on corporate electioneering communi-
cations was unconstitutional as applied to Wisconsin Right to
Life’s speech. Id. at 481.


E. The Government Accountability Board Enters the Scene
    In January 2008—six months after the Supreme Court
issued its decision in Wisconsin Right to Life—the Government
Accountability Board opened its doors as the new regulatory
agency responsible for administering Wisconsin election law,
taking over for the dissolved Elections Board. At the time, the
predecessor agency had been weighing new rulemaking to
Nos. 12-2915, 12-3046 & 12-3158                                        33

broaden the scope of the campaign-finance system to cover a
subset of issue ads akin to the “electioneering communica-
tions” now covered by federal law. This proved to be a heavy
regulatory lift. Restricting political speech is inherently
controversial, and many stakeholders reasonably questioned
whether the agency had the statutory authority to add new
categories of regulated speech not covered by Chapter 11.8 The
effort stalled in the Elections Board. The new agency picked up
where its predecessor left off.
    Recall that soon after the state supreme court decided
Wisconsin Manufacturers & Commerce, the Elections Board
amended its existing administrative rule governing the scope
of regulated activity to conform to the limits identified in the
court’s opinion. The amended rule defined “political commit-
tee” as “every committee which is formed primarily to influ-
ence elections or which is under the control of a candidate,”
and also specified that
           (2) Individuals other than candidates and
        committees other than political committees are
        subject to the applicable disclosure-related and
        recordkeeping-related requirements of ch. 11,
        Stats., only when they:




8
 See GAB, Open Session A genda M aterials (M ar. 26, 2008), http://gab.wi.
gov/sites/default/files/event/74/03_26_2008_agenda_materials_pdf_96273.
pdf. The administrative history of the rules at issue here may be found on
the GAB’s website under “Board M eetings.”
34                             Nos. 12-2915, 12-3046 & 12-3158

           (a) Make contributions for political purposes,
      or
         (b) Make contributions to any person at the
      request or with the authorization of a candidate
      or political committee, or
         (c) Make a communication containing terms
      such as the following or their functional equivalents
      with reference to a clearly identified candidate that
      expressly advocates the election or defeat of that
      candidate and that unambiguously relates to the
      campaign of that candidate:
           1. “Vote for;”
           2. “Elect;”
           3. “Support;”
           4. “Cast your ballot for;”
           5. “Smith for Assembly;”
           6. “Vote against;”
           7. “Defeat;”
           8. “Reject.”
EL BD § 1.28(2) (2001) (emphases added).
    In short, the agency clarified that the requirements of
Chapter 11 applied only to (1) candidates and their commit-
tees; and (2) committees formed primarily to influence elec-
tions (understood in the Buckley sense). Other individuals and
groups would be “subject to the applicable disclosure-related
and recordkeeping-related requirements” of Chapter 11 only
to the extent that they made contributions for political pur-
poses or spent money for communications containing express
Nos. 12-2915, 12-3046 & 12-3158                                               35

advocacy (again, understood in the Buckley sense) or its
functional equivalent (understood in the Wisconsin Right to
Life II sense), assuming the very low dollar threshold—then
just $25—was crossed. The reference to the “applicable
disclosure-related and recordkeeping-related requirements of
Chapter 11” was not further explained.
    The new agency initially reaffirmed ElBd § 1.28 but thereaf-
ter embarked on a project aimed at bringing a wide swath of
issue advocacy within the regulatory scheme.9 The Board
directed its staff to draft a new version of § 1.28 significantly
expanding its scope by adding a new category of regulated
communications much broader than the federal “electioneering
communications” at issue in McConnell and Wisconsin Right to
Life II.10 The new GAB § 1.28 is central to the claims in this case;
we will reproduce it in a moment. For now, it’s enough to say


9
  See GAB, Open Session M inutes (Aug. 27–28, 2008), http://gab.wi.gov/
sites/default/files/event/08_27_28_08_openmeetingminutes_pdf_20925.pdf;
Legality of GAB Proposal Expected To Be Challenged, W IS . L AW J. (Nov. 24,
2008, 1:00 AM ), http://wislawjournal.com/2008/11/24/legality-of-gab-
proposal-expected-to-be-challenged/; Todd Richmond, Board Asks if It Has
Power on Issue Ads: Many Say It’s Legislature’s Purview, S T . P A U L P IO N EER
P RESS , Aug. 29, 2008, available at 2008 W LNR 16398295; M ark Pitsch, Board
Urged To Regulate Issue Ads Critic Says Rules Would Infringe on Free Speech,
W IS . S TATE J. (Aug. 27, 2008, 12:00 AM ), http://host.m adison.com/ news/
local/board-urged-to-regulate-issue-ads-critic-says-rules-would/article_
c05184ba-414c-5d14-bb39-840b3389ef80.html.

10
  See GAB, Open Session M inutes (Nov. 11, 2008), http://gab.wi.gov/sites/
default/files/event/11_11_08_openmeetingminutes_pdf_43114.pdf; GAB,
Open Session M inutes (Jan. 15, 2009), http://gab.wi.gov/sites/default/files/
event/01_15_09_openmeetingminutes_pdf_15831.pdf.
36                                 Nos. 12-2915, 12-3046 & 12-3158

that under the new version of the rule, almost anything a
person might publicly say about a candidate within 30 days of
a primary and 60 days of a general election triggers the entire
panoply of proscriptions and prescriptions in Chapter 11 once
the minimal spending threshold is crossed (then a mere $25;
now $300).
   The Board approved the new GAB § 1.28 in January 2009.11
While it was in the final stages of the administrative process,
however, the Supreme Court decided Citizens United, overrul-
ing McConnell in part and invalidating the federal ban on
corporate and union independent spending for express
advocacy and electioneering communications. Citizens United,
558 U.S. at 365–66.


F. Citizens United v. FEC
    Citizens United arrived at the Supreme Court in the same
posture as Wisconsin Right to Life II—as an as-applied challenge
to the federal ban on corporate-funded independent expendi-
tures for express advocacy and electioneering communications.
Id. at 321–22. Citizens United, a nonprofit corporation, pro-
duced a film called Hillary: The Movie and wanted to make it
available by video-on-demand during the 2008 presidential
primaries in which then-Senator Hillary Clinton was a candi-
date. Id. at 319–20. To promote the movie, the group produced


11
  See GAB, Open Session M inutes (Jan. 15, 2009), http://gab.wi.gov/sites/
default/files/event/01_15_09_openmeetingminutes_pdf_15831.pdf. CR 09-13
was submitted to the Legislative Council Rules Clearinghouse on
February 5, 2009. 638 Wis. Admin. Reg. 13 (Feb. 28, 2009).
Nos. 12-2915, 12-3046 & 12-3158                               37

several ads to air on broadcast and cable networks. Id. at 320.
The federal ban on corporate political speech made it a crime
to disseminate the ads and the movie if they qualified as
express advocacy or its equivalent, so Citizens United sued for
declaratory and injunctive relief, arguing that the corporate-
speech ban and the disclosure and disclaimer requirements for
electioneering communications were unconstitutional as
applied to its speech. Id. at 321–22.
    A three-judge district-court panel applied McConnell and
rejected the challenge. Citizens United v. FEC, 530 F. Supp. 2d
274 (D.D.C. 2008). The Supreme Court heard the case, then
surprised the political and legal worlds by ordering it rebriefed
on the question of the continued viability of McConnell. Citizens
United, 558 U.S. at 322. Following reargument, the Court issued
its course-changing decision in January 2010.
    The Court began by holding that Hillary and the ads
promoting it were the functional equivalent of express advo-
cacy under Wisconsin Right to Life II and thus fell within
BCRA’s ban on corporate electioneering communications. Id.
at 324–25. This brought the full implications of McConnell’s
facial holding starkly into focus: If a movie sponsored by a
corporation could be banned during an election cycle, then so
could a book or a pamphlet. Id. at 333. The Court observed that
banning political expenditures by corporations is functionally
a total “ban on corporate speech,” even though “a PAC created
by a corporation can still speak.” Id. at 337. “PACs are burden-
some alternatives … [,] expensive to administer and subject to
extensive regulations,” id., and they must “comply with these
regulations just to speak,” id. at 338. Because these regulatory
38                              Nos. 12-2915, 12-3046 & 12-3158

burdens are “onerous,” the PAC system is nearly “the equiva-
lent of prior restraint.” Id. at 335. And because the law was “an
outright ban, backed by criminal sanctions,” id. at 337, its
chilling effect on core First Amendment speech rights was
severe, making ad hoc, as-applied remedies seriously deficient,
id. at 335–37. Accordingly, the Court reconsidered and partially
overruled McConnell, facially invalidating the ban on corporate
and union election-related spending. Id. at 365–66 (also
overruling Austin v. Michigan Chamber of Commerce, 494 U.S.
652 (1990), on which McConnell had relied).
    Importantly here, Citizens United restored some earlier
understandings about the constitutional limits on the govern-
ment’s authority to regulate election-related speech. First, the
Court reinvigorated the principle that “political speech does
not lose First Amendment protection ‘simply because its source
is a corporation,’” id. at 342 (quoting First Nat’l Bank of Bos. v.
Bellotti, 435 U.S. 765, 784 (1978)), and held as a categorical
matter that the government may not restrict political speech
“based on a speaker’s corporate identity,” id. at 347. Second,
the Court held that the only public interest strong enough to
justify restricting election-related speech is the interest in
preventing quid pro quo corruption or the appearance of
corruption. Id. at 359–61. Third, the Court concluded that
political spending by independent groups does not carry the
risk of this kind of corruption because “[b]y definition, an
independent expenditure is political speech presented to the
electorate that is not coordinated with a candidate.” Id. at 360.
Accordingly, the Court held as a matter of law that “inde-
pendent expenditures, including those made by corporations,
Nos. 12-2915, 12-3046 & 12-3158                                   39

do not give rise to corruption or the appearance of corruption.”
Id. at 357.
   Without an anticorruption rationale to support it, BCRA’s
ban on corporate electioneering communications was facially
unconstitutional: “No sufficient governmental interest justifies
limits on the political speech of nonprofit or for-profit
corporations.” Id. at 365.
    The Court took a different approach to the disclaimer and
disclosure requirements, although this part of the opinion is
quite brief. Following the doctrine established in Buckley, the
Court applied an intermediate standard of review—called
“exacting scrutiny,” but the label isn’t important—and re-
quired a showing of “a ‘substantial relation’ between the
disclosure requirement and a ‘sufficiently important’ govern-
mental interest.” Citizens United, 558 U.S. at 366–67 (quoting
Buckley, 424 U.S. at 64, 66). The public’s informational interest
in knowing the sponsorship and funding sources of election-
related ads had long been accepted as sufficiently important to
justify disclosure and disclaimer rules. Id. at 367. So the only
real question in Citizens United was the closeness of the fit
between that interest and the specific requirements imposed on
groups that sponsor electioneering communications. Id.
    The federal disclaimer provision requires only that the ad
identify in a “clearly spoken manner” the name of the group
responsible for its content, display the group’s name and
address (or web address), and state that the ad is “not autho-
rized by any candidate or candidate’s committee.” 2 U.S.C.
§ 441d(d)(2), (a)(3); see also Citizens United, 558 U.S. at 366. This
modest requirement easily cleared the intermediate-scrutiny
40                             Nos. 12-2915, 12-3046 & 12-3158

hurdle. The Court held that the disclaimer was adequately
tailored to serve the purpose of “provid[ing] the electorate
with information” and also “avoid confusion by making clear
that the ads are not funded by a candidate or political party.”
Citizens United, 558 U.S. at 368 (upholding the disclaimer rule
as applied to the ads); see also id. at 371 (summarily upholding
the disclaimer rule as applied to the movie).
     The Court’s evaluation of the disclosure provision entailed
little additional discussion. BCRA requires that “any person
who spends more than $10,000 on electioneering communica-
tions within a calendar year” must file a disclosure statement
with the FEC identifying “the person making the expenditure,
the amount of the expenditure, the election to which the
communication was directed, and the names of certain contri-
butors [donors who contributed $1,000 or more to the
expenditure].” Id. at 366 (citing 2 U.S.C. § 434(f)(1)–(2)). This
one-time, event-driven disclosure rule is far less burdensome
than the comprehensive registration and reporting system
imposed on political committees; the Court upheld it without
much comment. Id. at 368–69 (upholding the disclosure rule
with respect to the ads); see also id. at 371 (summarily uphold-
ing the disclosure rule with respect to the movie). The Court
did, however, affirmatively reject the argument that the
disclosure rule for electioneering communications should be
limited to speech that is the functional equivalent of express
advocacy. Id. at 369 (“[W]e reject Citizens United’s contention
that the disclosure requirements must be limited to speech that
is the functional equivalent of express advocacy.”). It’s not
clear why the Court addressed this argument; it had earlier
concluded that Hillary and the ads promoting it were the
Nos. 12-2915, 12-3046 & 12-3158                                       41

equivalent of express advocacy, so this argument no longer
mattered. Id. at 324–25.
    Finally, the Court reaffirmed that the disclosure require-
ment might be unconstitutional as applied to particular groups
“if there were a reasonable probability that the group’s
members would face threats, harassment, or reprisals if their
names were disclosed.” Id. at 370 (citing McConnell, 540 U.S. at
198). Citizens United had no such evidence, so there was no
impediment to applying the disclosure rule to it. Id.


G. Wisconsin Regulators React
    Citizens United has obvious and significant implications for
Chapter 11, so it comes as a bit of a surprise that the Wisconsin
legislature has not amended the statute to account for the
changes wrought by the decision. The GAB has not been
similarly silent.
    In response to Citizens United, the Board immediately
announced that it would not enforce section 11.38(1)(a)1, the
statutory ban on corporate political expenditures.12 The agency
then promulgated an emergency rule suspending the statutory
ban and creating a new category of political speakers—
“independent disbursement organizations”—that would
thenceforward be subject to the organizational, registration,
and reporting requirements of Chapter 11. The emergency rule,


12
   See GAB, Open Session M inutes (M ar. 23–24, 2010), http://gab.wi.gov/
sites/default/files/event/74/03_23_24_10_open_session_minutes_final_pdf_
20361.pdf.
42                                 Nos. 12-2915, 12-3046 & 12-3158

GAB § 1.91, is completely new; it was approved on May 10,
2010, and became effective ten days later.13 It remained in effect
for 150 days and was eligible for several extensions while the
agency held public hearings on a permanent rule. See generally
WIS. STAT. § 227.24. The extensions were approved, and the
final rule became effective on July 1, 2012, while this litigation
was underway. 678 Wis. Admin. Reg. 43 (June 30, 2012).
     Briefly, the new rule suspends section 11.38(1)(a)1, the
statutory ban on political spending by corporations, “until such
time as a court having jurisdiction in the State of Wisconsin
rules that a corporation … may constitutionally be restricted
from making an independent disbursement.” WIS. ADMIN .
CODE GAB § 1.91(2). The rule also requires every “organiza-
tion” that independently raises and spends money for political
speech to comply with the registration and reporting require-
ments applicable to political committees. See id. § 1.91(3)–(8).
More specifically, the rule applies most PAC duties to organi-
zations that ”accept[] contributions for, incur obligations for, or
mak[e] an independent disbursement exceeding $25 in aggre-
gate during a calendar year.” Id. § 1.91(3); see id. § 1.91(4)–(8).
“Organization” is not a statutory term; the rule defines it
broadly to include any person (including any association,
partnership, or corporation), but not individuals and commit-
tees already required to register and report under Chapter 11.
Id. § 1.91(1)(g)–(h). Though lengthy, GAB § 1.91 is central to the
claims in this case; we reproduce it in full in the appendix.


13
 See GAB, Open Session M inutes (M ay 10, 2010), http://gab.wi.gov/sites/
default/files/event/74/05_10_10_open_session_m inutes_final_pdf_16560.
pdf; 653 Wis. Admin. Reg. 16 (M ay 31, 2010).
Nos. 12-2915, 12-3046 & 12-3158                                 43

    Finally, the Board kept its new version of GAB § 1.28 on
track, sweeping all issue advocacy that refers to a candidate in
the lead-up to an election into the state PAC system. The new
rule was published in final form on July 31, 2010, and became
effective the next day. 655 Wis. Admin. Reg. 41 (July 31, 2010).
In brief, the new version of GAB § 1.28 removes the express-
advocacy limitation from the old rule, introduces broad new
definitions of “communication” and “political purpose,” and
creates a conclusive presumption that almost anything said
about a candidate at election time triggers all the restrictions
and requirements of Chapter 11. This rule is also central to the
claims in this case; we reproduce it here. To better illustrate the
expansive scope of the new rule, deletions from the old rule are
marked with strikeouts and new language is underlined:
       GAB 1.28 Scope of regulated activity; election
       of candidates.
       (1) Definitions. As used in this rule:
           (a) “Political committee” means every com-
       mittee which is formed primarily to influence
       elections or which is under the control of a
       candidate.
           (b) “Communication” means any printed
       advertisement, billboard, handbill, sample ballot,
       television or radio advertisement, telephone call,
       e-mail, internet posting, and any other form of
       communication that may be utilized for a politi-
       cal purpose.
44                          Nos. 12-2915, 12-3046 & 12-3158

         (c) “Contributions for political purposes”
     means contributions made to 1) a candidate, or
     2) a political committee or 3) an individual who
     makes contributions to a candidate or political
     committee or incurs obligations or makes dis-
     bursements for the purpose of expressly advo-
     cating the election or defeat of an identified
     candidate political purposes.
     (2) Individuals other than candidates and com-
     mittees persons other than political committees
     are subject to the applicable disclosure-related
     and recordkeeping-related requirements of
     ch. 11, Stats., only when they:
        (a) Make contributions or disbursements for
     political purposes, or
        (b) Make contributions to any person at the
     request or with the authorization of a candidate
     or political committee, or
        (c) Make a communication containing for a
     political purpose.
     (3) A communication is for a “political purpose”
     if either of the following applies:
         (a) The communication contains terms such
     as the following or their functional equivalents
     with reference to a clearly identified candidate
     that expressly advocates the election or defeat of
     that candidate and that unambiguously relates to
     the campaign of the candidate:
Nos. 12-2915, 12-3046 & 12-3158                             45

         1. “Vote for;”
         2. “Elect;”
         3. “Support;”
         4. “Cast your ballot for;”
         5. “Smith for Assembly;”
         6. “Vote against;”
         7. “Defeat;” or
         8. “Reject.”
          (b) The communication is susceptible of no
      reasonable interpretation other than as an appeal
      to vote for or against a specific candidate. A
      communication is susceptible of no other reason-
      able interpretation if it is made during the period
      beginning on the 60th day preceding a general,
      special, or spring election ending on the date of
      that election or during the period beginning on
      the 30th day preceding a primary election and
      ending on the date of that election and that
      includes a reference to or depiction of a clearly
      identified candidate and:
         1. Refers to the personal qualities, character,
         or fitness of that candidate;
         2. Supports or condemns that candidate’s
         position or stance on issues; or
         3. Supports or condemns that candidate’s
         public record.
46                                     Nos. 12-2915, 12-3046 & 12-3158

WIS. ADMIN . CODE GAB § 1.28 (emphasis added).14


H. Much Litigation Ensues
    The two new rules were controversial and obvious candi-
dates for constitutional challenge. Within a fortnight three
lawsuits were filed seeking injunctive relief against one or both
of the rules. The first was Wisconsin Club for Growth, Inc. v.
Myse, a federal action filed in the Western District of Wiscon-
sin. The plaintiffs there challenged GAB § 1.28 on two grounds:
(1) the agency lacked the statutory authority to expand the
scope of the statutory scheme; and (2) the new rule is over-
broad and impermissibly burdens free-speech rights in
violation of the First Amendment. See Complaint at 13–17, Wis.
Club for Growth, Inc. v. Myse, No. 10-cv-427-wmc (W.D. Wis.
filed July 31, 2010).
    Wisconsin Right to Life filed this suit in the Eastern District
a few days later. The third suit was an original action initiated
in the state supreme court. See Wis. Prosperity Network v. Myse,
810 N.W.2d 356 (Wis. 2012). Filed on August 9, 2010, the
original action raised essentially the same claims as the
Wisconsin Club for Growth litigation. The state high court
immediately issued an order enjoining enforcement of GAB
§ 1.28 pending further review. Id. at 356–57.
   That move affected the two federal cases; all three lawsuits
challenged GAB § 1.28. This case challenges many other laws
as well, but the district judge abstained to await the outcome


14
     Subsection (4), not relevant here, has been omitted.
Nos. 12-2915, 12-3046 & 12-3158                                47

of the original action in the state supreme court, putting all the
claims on indefinite hold. Barland I, 664 F.3d at 143.
    Meanwhile, over in the Western District, the Board swiftly
threw in the towel. Less than two weeks after Wisconsin Club
for Growth was filed, the parties stipulated to the entry of final
judgment, agreeing that the court “may enter a permanent
injunction, order, and judgment enjoining the application or
enforcement of the second sentence of Wis. Admin. GAB
§ 1.28(3)(b).” Stipulation, Wis. Club for Growth,
No. 10-cv-427-wmc, ECF No. 22-1. (To remind the reader: The
second sentence of § 1.28(3)(b) is a conclusive presumption that
almost anything said about a candidate in any medium of
public expression within 30 days of a primary or 60 days of a
general election counts as a communication made for a
“political purpose,” triggering political-committee status and
the other restrictions and requirements of Chapter 11.) The
stipulation expressly resolved the first claim in the case, which
had challenged § 1.28 as ultra vires. If the court accepted the
stipulation, the plaintiffs agreed to dismiss their First Amend-
ment claim without prejudice.
    The court did not accept the stipulation. The judge in the
Western District opted to abstain in favor of the state supreme
court, as his colleague in the Eastern District had done. See Wis.
Club for Growth, Inc. v. Myse, No. 10-cv-427-wmc, 2010 WL
4024932, at *6–7 (W.D. Wis. Oct. 13, 2010). With both federal
actions stayed and the state supreme court’s place-holding
injunction casting significant doubt on the new rule, the Board
went back to the drawing board and promulgated an
48                                 Nos. 12-2915, 12-3046 & 12-3158

emergency rule eliminating the questionable second sentence
of GAB § 1.28(3)(b).15
                               *   *   *
    The following year was an extraordinary one in Wisconsin
political history, as we explained in Barland I and need not
repeat here. 664 F.3d at 144–45. In anticipation of unprece-
dented legislative recall elections, the Wisconsin Right to Life
State PAC returned to the district court and sought relief from
the stay for the limited purpose of litigating its challenge to
section 11.26(4), the aggregate limit on annual contributions to
candidates, parties, and political committees. Id. at 145. The
district judge declined to lift the stay, but we vacated and
remanded. Id. at 154–55. Citizens United had categorically
removed the anticorruption rationale as a justification for
campaign-finance restrictions on independent political groups.
This left “no valid governmental interest sufficient to justify
imposing limits on fundraising by independent-expenditure
organizations.” Id. at 154. We found the aggregate contribution
limit unconstitutional as applied to independent-expenditure
groups and their donors and instructed the district court to
enter a permanent injunction enjoining its enforcement. Id. at
155.
   The rest of the case remained stayed pending resolution of
the original action in the state supreme court, but that court


15
  See M emorandum from Kevin J. Kennedy, Director and General Counsel,
GAB, to Members, Wisconsin GAB (Dec. 22, 2010), http://gab.wi.gov/sites/
default/files/event/74/board_memorandum_emr_gab_1_28_pdf_43198.pdf;
661 Wis. Admin. Reg. 8 (Jan. 14, 2011).
Nos. 12-2915, 12-3046 & 12-3158                                         49

could not reach a decision. With one justice recused, the court
split 3–3, and on March 19, 2012, issued a per curiam order
vacating the injunction and dismissing the original action. See
Wis. Prosperity Network, 810 N.W.2d at 357. Several months
earlier, however, the GAB had approved a permanent rule
removing the problematic second sentence of § 1.28(3)(b).16 But
the new rule remains mired in the administrative process and
is not yet on the books. The emergency rule has now expired,17
so the 2010 version of GAB § 1.28 continues in effect.
                                *    *   *
    Neither party saw fit to bring the regulatory and litigation
history of GAB § 1.28 to our attention until we asked about it
in a supplemental briefing order. This was chiefly the responsi-
bility of the Board’s counsel, an experienced lawyer in the state
Department of Justice. In his supplemental brief, he explained
that it would “[not] have been helpful … to go into this
history” because “the history has become moot.” That’s an
astonishing statement. History does not “become moot.” And
the Board’s retreat from the 2010 rule—the rapid stipulation in
Wisconsin Club for Growth, the emergency rule, and the revised
permanent rule—strongly suggest a concession that § 1.28 is
ultra vires, and perhaps also that it is unconstitutional. Forced


16
  See GAB, Open Session M inutes (Dec. 13, 2011), http://gab.wi.gov/sites/
default/files/event/74/12_13_11_open_session_minutes_signed_pdf_62545.
pdf; 669 Wis. Admin. Reg. 13 (Sept. 14, 2011) (Statement of Scope).

17
  The emergency rule expired on October 3, 2011. 668 Wis. Admin. Reg. 5
(Aug. 14, 2011) (extending the rule through October 3; no further extension
granted).
50                              Nos. 12-2915, 12-3046 & 12-3158

to come forward with this information, counsel now represents
that the Board “intends to continue to honor the stipulation” in
Wisconsin Club for Growth, whatever that means.
    This background should have been raised in the Board’s
initial brief. Now that we have it, we’re not sure what to make
of counsel’s belated representation that the Board “intends to
continue to honor the stipulation.” The Board has not acted on
this intent, at least as far as we’re told, and counsel’s statement
is in any event vague. The stipulation was never reduced to
judgment. Order, Wis. Club for Growth, No. 10-cv-427-wmc,
ECF No. 46 (filed on Feb. 28, 2013) (dismissing case). Political
speakers in Wisconsin can’t rely on the agency’s unofficial
expression of intent to refrain from enforcing its rules. The 2010
version of GAB § 1.28 remains in force and encumbers the free-
speech rights of anyone who says almost anything about a
candidate near an election. We must judge the Board’s actions,
not its inchoate intent.
                            *    *   *
    After the state supreme court deadlocked, Wisconsin Right
to Life roused this case from its slumber, filed an amended
complaint, and moved for a preliminary injunction on the rest
of its claims, which challenge the following statutes and rules:
     • Section 11.38(1), the ban on political spending by
       corporations;
     • Section 11.38(1)(a)3, the cap on the amount a corpora-
       tion may spend to raise money for an affiliated political
       committee;
Nos. 12-2915, 12-3046 & 12-3158                              51

   • Sections 11.01(4) (defining “committee” and “political
     committee”), 11.01(6) (defining “contribution”), 11.01(7)
     (defining “disbursement”), and 11.01(16) (defining
     “political purposes”), to the extent that these definitions
     trigger (either independently or with the administrative
     rules) PAC status and other restrictions and require-
     ments for independent groups not under the control of
     a candidate or candidate’s committee and not engaged
     in express election advocacy as their major purpose;
   • The two new administrative rules—GAB §§ 1.28 and
     1.91—promulgated in the wake of Citizens United to
     expand the scope of the regulatory scheme and impose
     PAC status or PAC-like duties and restrictions on newly
     liberated independent political speakers;
   • Sections 11.12(5)–(6), the 24-hour-reporting requirement
     for certain late contributions and expenditures (recently
     amended to enlarge the reporting time to 48 hours);
   • Section 11.06(7), which requires any independent group
     that wants to spend money to support or oppose a
     candidate for state or local office to file an oath affirm-
     ing that the spending is not coordinated with the
     candidate or the candidate’s agent (a related administra-
     tive rule, GAB § 1.42(1), is also challenged); and
   • GAB § 1.42(5), which requires that independent political
     communications include a lengthy disclaimer.
    In an oral ruling, the district judge granted the motion in
part. The judge agreed that the plaintiffs had “some likelihood
of success” on their claim that section 11.38(1)(a)1, the ban on
52                                  Nos. 12-2915, 12-3046 & 12-3158

corporate political speech, was unconstitutional “as applied
… and facially.” He also agreed that the lengthy disclaimer for
independent political messages—GAB § 1.42(5)—was “unduly
burdensome” as applied to “ads less than 30 seconds in length”
and enjoined it to that extent. The judge held that the challenge
to GAB § 1.91 was moot and otherwise denied preliminary
injunctive relief.
    In a written order memorializing this ruling, the court
entered a preliminary injunction “as to count nine … with
respect to the corporate disbursement ban” and also “as to
count five … with respect to ads that are less than 30 seconds
in length.” In all other respects, the court denied the motion for
a preliminary injunction. Wisconsin Right to Life appealed.18
See 28 U.S.C. § 1292(a)(1) (authorizing an interlocutory appeal
from an order granting or denying an injunction).




18
  Actually, Wisconsin Right to Life filed three notices of appeal. The first
(No. 12-2915) is an appeal from a claimed “constructive denial” of the
motion for a preliminary injunction; that appeal was premature and is
dismissed. The second (No. 12-3046) is an appeal from the district court’s
order granting in part and denying in part the plaintiffs’ motion for a
preliminary injunction; that appeal is proper under 28 U.S.C. § 1292(a)(1).
The third (No. 12-3158) is an appeal from the district court’s order denying
an injunction pending appeal, but the plaintiffs did not seek an injunction
pending appeal in this court; that appeal is dismissed.
Nos. 12-2915, 12-3046 & 12-3158                                  53

                           II. Analysis
A. Rule 65(d)(1)
    Although the parties have not raised it, we note a flaw in
the form of the district court’s injunction order. Rule 65
requires that every injunction order must “state the reasons
why it issued,” “state its terms specifically,” and “describe in
reasonable detail—and not by referring to the complaint or
other document—the act or acts restrained or required.” FED .
R. CIV . P. 65(d)(1). The court’s written order summarily enters
a preliminary injunction “with respect to” certain parts of
count five and count nine, which are only very generally
described. That’s not a proper injunction order. A reader
would have to consult the pleadings and a transcript of the
hearing to learn the scope of the injunction. On remand the
district court will have to enter a new injunction to conform to
this opinion and should take care to comply with the specificity
requirements of Rule 65(d)(1).


B. Injunction Standards
    To obtain a preliminary injunction, the moving party must
show that it has “(1) no adequate remedy at law and will suffer
irreparable harm if a preliminary injunction is denied and
(2) some likelihood of success on the merits.” Ezell v. City of
Chicago, 651 F.3d 684, 694 (7th Cir. 2011). If this showing is
made, “the court weighs the competing harms to the parties if
an injunction is granted or denied and also considers the public
interest.” Korte v. Sebelius, 735 F.3d 654, 665 (7th Cir. 2013). The
“equitable balancing proceeds on a sliding-scale analysis; the
54                             Nos. 12-2915, 12-3046 & 12-3158

greater the likelihood of success on the merits, the less heavily
the balance of harms must tip in the moving party’s favor.” Id.
    In First Amendment cases, however, the likelihood of
success on the merits is usually the decisive factor. “[T]he loss
of First Amendment freedoms … unquestionably constitutes
irreparable injury,” and “injunctions protecting First Amend-
ment freedoms are always in the public interest.” ACLU v.
Alvarez, 679 F.3d 583, 589, 590 (7th Cir. 2012) (internal quota-
tion marks omitted). On the merits questions, “the burdens at
the preliminary injunction stage track the burdens at trial.”
Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal,
546 U.S. 418, 429 (2006). Here, the Board bears the burden of
justifying the regulatory scheme: “When the Government
restricts speech, the Government bears the burden of proving
the constitutionality of its actions.” McCutcheon, 134 S. Ct. at
1452 (internal quotation marks omitted).
    This case is only nominally in a “preliminary” stage. The
claims have been tested through several rounds of briefing
both in the district court and on appeal. Multiple statutes and
rules are challenged, both facially and “as applied,” but few of
the claims depend on specific application facts. See Ezell,
651 F.3d at 697 (“In a facial constitutional challenge, individual
application facts do not matter.”). There are no factual disputes
for trial. We are confronted with purely legal questions, which
we review de novo. See Korte, 735 F.3d at 665. As in Barland I,
our resolution of the disputed legal issues has the effect of
requiring the entry of a permanent injunction enjoining the
enforcement of the unconstitutional provisions. 664 F.3d at 155.
Indeed, the Board concedes that some of the challenged
Nos. 12-2915, 12-3046 & 12-3158                                 55

statutes and rules are unconstitutional or require a limiting
construction, so we start there.


C. Concessions of Unconstitutionality
   1. Section 11.38(1)(a)1, the Ban on Corporate Political
   Expenditures
    The Board concedes, as it must, that Wisconsin’s ban on
corporate political expenditures, section 11.38(1)(a)1, is facially
unconstitutional. The state law is indistinguishable from the
federal statute at issue in Citizens United and must suffer the
same fate. See Am. Tradition P’ship v. Bullock, 132 S. Ct. 2490,
2491 (2012) (per curiam) (applying Citizens United to invalidate
a similar Montana statute). As we have noted, soon after
Citizens United was decided, the Board promulgated a rule
effectively acknowledging the statute’s unconstitutionality,
although authorizing its enforcement if a court were to declare
it constitutional. See GAB § 1.91(2).
    There “can be no serious doubt” that “the holding of
Citizens United applies to the [Wisconsin] state law.” Am.
Tradition P’ship, 132 S. Ct. at 2491. The district court
preliminarily enjoined the enforcement of the statute. On
remand the injunction against section 11.38(1)(a)1 should be
made permanent.
56                             Nos. 12-2915, 12-3046 & 12-3158

     2. Section 11.38(1)(a)3, the Cap on Corporate Fundraising
     for an Affiliated PAC
    The Board also agrees that section 11.38(1)(a)3 is unconsti-
tutional. That subsection of the statute caps the amount a
corporation may spend to solicit contributions to an affiliated
PAC. Originally set at $500, the cap was recently raised to
$20,000 or 20% of the prior year’s contributions. See 2013 Wis.
Act 153 § 21m. The amendment does not affect the constitu-
tional analysis. The statute is plainly unconstitutional under
the rationale of Citizens United and our decision in Barland I, as
the Board concedes. But the district court did not enjoin it.
    The Board’s counsel advises us that the Board will not
enforce the statute against Wisconsin Right to Life and its state
PAC, but the no-enforcement pledge is good for them only, not
other independent groups in Wisconsin. This appellate
concession raises a question about whether Wisconsin Right to
Life continues to have standing on this claim. A preenforce-
ment challenge requires a credible threat of prosecution,
Schirmer v. Nagode, 621 F.3d 581, 586 (7th Cir. 2010), which
ordinarily ceases to exist “when a state agency acknowledges
that it will not enforce a statute because it is plainly unconsti-
tutional,” Schober, 366 F.3d at 492. Even if the plaintiff’s
standing was secure when the case was filed, a controversy can
become moot if the threat of prosecution has evaporated.
Winsness v. Yocom, 433 F.3d 727, 736 (10th Cir. 2006).
    On the other hand, a case does not become moot merely
because the defendants have stopped engaging in unlawful
activity. “[A] defendant claiming that its voluntary compliance
moots a case bears the formidable burden of showing that it is
Nos. 12-2915, 12-3046 & 12-3158                                57

absolutely clear the allegedly wrongful behavior could not
reasonably be expected to recur.” Friends of the Earth, Inc. v.
Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 190 (2000). The Board
hasn’t raised the voluntary-cessation doctrine, and its inconsis-
tent and shifting positions do not give us much confidence in
its representation that it will not enforce the statute. By not
fully disclaiming the right to enforce this facially invalid
statute, the Board’s halfhearted concession leaves us with no
assurance that it will continue to recognize its unconstitutional-
ity.
    To repeat what we said in Barland I: “[A]fter Citizens United
there is no valid governmental interest sufficient to justify
imposing limits on fundraising by independent-expenditure
organizations.” 664 F.3d at 154. The statute is unconstitutional
on its face, so it cannot be enforced against anyone. Accordingly,
on remand section 11.38(1)(a)3 should be permanently en-
joined.


   3. GAB § 1.42(5), the Lengthy Regulatory Disclaimer
   The Board also admits that GAB § 1.42(5), the wordy
regulatory disclaimer, is unconstitutional as applied to 30-
second radio ads. The extra verbiage required by the rule goes
well beyond the short disclaimer required by statute. But it
simply repeats—in 50 extra words—the very same point: that
the political message was not authorized by a candidate or a
58                                        Nos. 12-2915, 12-3046 & 12-3158

candidate’s agent or committee.19 The Board has not identified
any regulatory purpose for the extra words, which consume a
significant amount of paid advertising time in a broadcast ad.
We’re told that for television ads the regulatory disclaimer
may appear in written form and need not be spoken. Wiscon-
sin Right to Life has challenged the rule only as applied to 30-
second radio ads, and the Board has conceded that claim. In
light of this concession, the Board hasn’t offered any reason for
the long and repetitive regulatory disclaimer, and frankly we
can’t see the point of requiring it in ads of any length. But the
claim is limited to 30-second radio ads.
    The district court granted a preliminary injunction on this
claim, but we note an error in the court’s written order, which
enjoins GAB § 1.42(5) “with respect to ads that are less than
30 seconds in length.” (Emphasis added.) Everyone understood
that the claim concerned 30-second ads; while this implicitly
includes ads of shorter duration, the injunction should not be
limited to ads of “less than” 30 seconds. On remand the court




19
  The disclaimer required by statute is: “Not authorized by any candidate
or candidate’s agent or committee.” W IS . S TAT . § 11.30(2)(d). The disclaimer
required by the rule is:

         The committee (individual) is the sole source of this
         communication and the committee (individual) did not act
         in cooperation or consultation with, and 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 by this communication.

W IS . A D M IN . C O DE GAB § 1.42(5).
Nos. 12-2915, 12-3046 & 12-3158                                            59

should permanently enjoin enforcement of GAB § 1.42(5)
against 30-second radio ads and ads of shorter duration.


     4. Section 11.01(16), the Statutory Definition of “Political
     Purposes,” and GAB § 1.28(1), the Regulatory Definition of
     “Political Committee”
   The Board also agrees that the statutory definition of
“political purposes,” which triggers PAC duties and other
requirements and restrictions, is vague and overbroad in the
sense meant by Buckley and requires a limiting construction.20
The Board likewise agrees that the regulatory definition of
“political committee” is similarly vague and overbroad and
must be narrowly construed.
    Section 11.01(16) provides that “[a]n act is for ‘political
purposes’ when it is done for the purpose of influencing the
election or nomination for election of any individual to state or
local office,” or “for the purpose of influencing the recall from or
retention in office of an individual holding a state or local
office,” or “attempting to influence an endorsement or nomina-
tion to be made at a convention of political party members.”



20
  Again, Chapter 11 is structured so that political-committee requirements
and the other prescriptions and proscriptions of the regulatory scheme are
triggered indirectly, by the making of contributions and disbursements. See
W IS . S TAT . § 11.01(4) (defining “committee”); § 11.01(6) (“contribution”);
§ 11.01(7) (“disbursement”); § 11.05 (requiring registration); § 11.06
(reporting); §§ 11.12 and 11.16 (permitting only a registered treasurer to
receive contributions or make disbursements); § 11.26 (limiting contribu-
tions).
60                            Nos. 12-2915, 12-3046 & 12-3158

WIS. STAT . § 11.01(16), (16)(a)2 (emphases added). GAB
§ 1.28(1)(a) provides that “‘[p]olitical committee’ means every
committee which is formed primarily to influence elections or
which is under the control of a candidate.” GAB 1.28(1)(a)
(emphasis added).
    The “influence an election” language in both definitions
raises the same vagueness and overbreadth concerns that were
present in federal law at the time of Buckley. The Court held
that this kind of broad and imprecise language risks chilling
issue advocacy, which may not be regulated; the same reason-
ing applies here. The Board acknowledges as much and
suggests a limiting construction to confine the definitions to
express advocacy and its functional equivalent. That’s how the
Attorney General and the state supreme court have under-
stood the statute. See Wis. Mfrs. & Commerce, 597 N.W.2d at
728–31; 65 Op. Atty. Gen. 145.
    As we’ve noted, after Buckley the legislature amended the
statutory definition of “political purposes” to incorporate an
express-advocacy limitation. But the broad “influencing”
language remains in the statute, and the express-advocacy
limitation carries some residual vagueness and overbreadth:
“Acts which are for ‘political purposes’ include but are not
limited to … [t]he making of a communication which expressly
advocates the election, defeat, recall or retention of a clearly
identified candidate … .” WIS. STAT . § 11.01(16)(a)1 (emphasis
added). The “not limited to” language holds the potential for
regulatory mischief. Perhaps it was included to leave room for
regulation of the “functional equivalent” of express advocacy
Nos. 12-2915, 12-3046 & 12-3158                                          61

as that term was later explained in Wisconsin Right to Life II.21
Beyond that, however, the language contains persistent
vagueness and overbreadth.
    As federal judges “we are ‘without power to adopt a
narrowing construction of a state statute unless such a con-
struction is reasonable and readily apparent.’” Stenberg v.
Carhart, 530 U.S. 914, 944 (2000) (quoting Boos v. Barry, 485 U.S.
312, 330 (1988)). The “unless” clause in this important federal-
ism principle should be invoked sparingly and with caution. A
federal court cannot “make a binding interpretation of a state
statute, endeavoring to trim its vague provisions; if it attempts
a narrowing interpretation that deviates widely from the
statute’s apparent meaning it is taking a big risk that the state
will reject the interpretation.” Ctr. for Individual Freedom v.
Madigan, 697 F.3d 464, 500 (7th Cir. 2012) (Posner, J., concur-
ring in part and dissenting in part). The alternative is to strike
the statute and let the state legislature or the state supreme
court bring it into conformity with the federal Constitution.
    We’re confident that the proposed narrowing construction
is reasonable, readily apparent, and likely to be approved by
the state courts. The state’s highest court and its Attorney


21
  The “not limited to” language may have been included to account for the
fact that the definition of “political purposes” applies comprehensively to
candidates, their connected committees, parties, independent groups, and
individuals. Communications by candidates and their connected commit-
tees obviously are “unambiguously related to the campaign” of a
particular candidate. Buckley v. Valeo, 424 U.S. 1, 80 (1976). As applied to
political speech by noncandidates and outside groups, however, the
definition raises vagueness and overbreadth concerns.
62                             Nos. 12-2915, 12-3046 & 12-3158

General have acknowledged that when Chapter 11 is applied
beyond candidates, their committees, and political parties, it
must be narrowly construed to comply with Buckley’s express-
advocacy limitation; the administration of the state’s
campaign-finance system has generally reflected this under-
standing for many decades. Accordingly, we accept the
proposed narrowing construction. As applied to political
speakers other than candidates, their committees, and political
parties, the statutory definition of “political purposes” in
section 11.01(16) and the regulatory definition of “political
committee” in GAB § 1.28(1)(a) are limited to express advocacy
and its functional equivalent as those terms were explained in
Buckley and Wisconsin Right to Life II.


D. Other Provisions
     1. GAB § 1.28 and GAB § 1.91
    Wisconsin Right to Life argues that GAB §§ 1.28 and 1.91
unconstitutionally expand the reach of the regulatory scheme
by imposing political-committee status and other restrictions
on groups engaged in issue advocacy and “PAC-like” burdens
on independent political groups not engaged in express
advocacy or its equivalent as their major purpose. The argu-
ment is fuzzy, but we understand it to be twofold: (1) the rules
cast too wide a net by capturing unregulable issue advocacy,
either explicitly or by introducing uncertainty; and (2) the rules
impermissibly impose PAC status or “PAC-like” burdens on
issue-advocacy groups not engaged in express advocacy as
their major purpose. The complaints overlap, and both are
valid.
Nos. 12-2915, 12-3046 & 12-3158                                63

     As we’ve explained, the 2010 version of GAB § 1.28 deleted
the express-advocacy limitation in the old rule and added
language specifically designed to bring issue advocacy within
the scope of the state’s PAC regulatory system. That was the
explicit goal; the Board sought to do by regulation what state
lawmakers had failed to do by legislation. Under GAB § 1.28,
all independent political speakers—individuals and all types
of organizational associations—are “subject to the applicable
requirements of ch. 11, Stats, when they … [m]ake a communi-
cation for a political purpose.” GAB § 1.28(2)(c). The rule
defines “communication” and “political purpose” quite
expansively.
    “‘Communication’ means any printed advertisement,
billboard, handbill, sample ballot, television or radio advertise-
ment, telephone call, e-mail, internet posting, and any other
form of communication that may be utilized for a political
purpose.” Id. § 1.28(1)(b). This goes well beyond the federal
definition of electioneering communications, which includes
only “broadcast, cable, or satellite communication,” 2 U.S.C.
§ 434(f)(3)(A)(i), and requires disclosure only when the
expenditure exceeds $10,000, id. § 434(f)(1).
    The definition of “political purpose” is similarly compre-
hensive. No longer confined to express advocacy and its
functional equivalent, the rule covers any communication made
within 30 days of a primary, or 60 days of a general election,
that names or depicts a “clearly identified candidate” and
refers to the candidate’s “personal qualities, character, or
fitness” or “supports or condemns” the candidate’s record or
“position or stance on issues.” GAB § 1.28(3)(b). Any
64                             Nos. 12-2915, 12-3046 & 12-3158

communication of this type is conclusively treated as an
“appeal to vote,” see id., thus triggering political-committee
status and other statutory and regulatory restrictions if the
very low contribution or spending threshold is crossed.
    The rule is fatally vague and overbroad in several respects.
First, it sweeps a far wider universe of political speech into the
“applicable requirements of chap. 11, Stats.” than does
Chapter 11 itself, introducing confusion for ordinary political
speakers who lack the background or assistance of a campaign-
finance lawyer. In this regard, it may also exceed the Board’s
regulatory authority. The rule goes beyond the bounds of the
statute itself, which under Buckley and Wisconsin Right to Life II
must be narrowly construed to apply only to independent
spending for express advocacy and its functional equivalent, as
the Board has acknowledged. The ultra vires objection was
before the state supreme court in Wisconsin Prosperity Network
and was also raised in Wisconsin Club for Growth. In the federal
case, the Board conceded the claim. In the state supreme court,
however, the Board took a different position, defending its
authority to enlarge the scope of the statutory scheme.
    On the regulatory side of things, the agency’s position also
has shifted. When the rule was initially challenged, the Board
issued an emergency rule removing the objectionable second
sentence of subsection (3)(b)—the conclusive presumption that
treats all issue advocacy during the 30/60-day preelection
periods as express advocacy. With the emergency rule in place,
the Board began the process of making the scaled-back rule
permanent. In the meantime, however, the emergency rule
expired, and the revised permanent rule has not yet run the
Nos. 12-2915, 12-3046 & 12-3158                               65

administrative gauntlet. So the 2010 rule remains in force and
the Board defends it here, despite its checkered history and
serious doubt about the agency’s statutory authority to
regulate this broadly.
    Setting aside the ultra vires question, which is not specifi-
cally raised, the second sentence of subsection (3)(b) is uncon-
stitutionally vague and overbroad in the sense meant by
Buckley. In the First Amendment context, the doctrines of
vagueness and overbreadth overlap; both are premised on
concerns about chilling constitutionally protected speech.
Kolender v. Lawson, 461 U.S. 352, 359 n.8 (1983) (explaining that
in free-speech law “vagueness and overbreadth [are] logically
related and similar doctrines”). Generally speaking, “[v]ague-
ness doctrine rests on concerns about fair notice and arbitrary
enforcement.” United States v. Jones, 689 F.3d 696, 701 (7th Cir.
2012). All laws must be clear and precise enough to give a
person of ordinary intelligence fair notice about what is
required of him and also to guard against the arbitrary and
discriminatory exercise of enforcement discretion. See FCC v.
Fox Television Stations, Inc., 132 S. Ct. 2307, 2317 (2012).
   Regulations on speech, however, must meet a higher
standard of clarity and precision. In the First Amendment
context, “rigorous adherence to [these] requirements is
necessary to ensure that ambiguity does not chill protected
speech.” Id. Vague or overbroad speech regulations carry an
unacceptable risk that speakers will self-censor, so the First
Amendment requires more vigorous judicial scrutiny. See
Smith v. Goguen, 415 U.S. 566, 573 (1974) (explaining that where
66                             Nos. 12-2915, 12-3046 & 12-3158

a law reaches protected expression, “the doctrine demands a
greater degree of specificity than in other contexts”).
    Ordinarily when a law is facially challenged on vagueness
and overbreadth grounds, the “court’s first task is to determine
whether the enactment reaches a substantial amount of
constitutionally protected” speech. Village of Hoffman Estates v.
Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494 (1982). Put
somewhat differently, a statute will be struck down as facially
overbroad if it “punishes a ‘substantial’ amount of protected
free speech, ‘judged in relation to the statute’s plainly legiti-
mate sweep.’” Virginia v. Hicks, 539 U.S. 113, 118–19 (2003)
(quoting Broadrick v. Oklahoma, 413 U.S. 601, 615 (1973)).
   But campaign-finance laws operate in a core free-speech
zone and directly target protected speech. In this context, we
don’t need to ask whether the challenged law reaches a
substantial amount of protected speech; by definition, it does,
because all political speech is protected. That’s precisely why
Buckley held that the “‘government may regulate in th[is] area
only with narrow specificity,’” 424 U.S. at 41 n.48 (quoting
Button, 371 U.S. at 433), and drew the constitutional line at
express election advocacy. So the more focused inquiry here is
whether this regulation steers clear of the line drawn in
Buckley.
   Plainly it does not. For some campaign-finance laws,
however, Citizens United has relaxed Buckley’s express-
advocacy boundary line. As we’ve explained, the Court
declined to apply the express-advocacy limitation to the
federal disclosure and disclaimer requirements for electioneer-
ing communications. Citizens United, 558 U.S. at 369. This was
Nos. 12-2915, 12-3046 & 12-3158                                67

dicta. The Court had already concluded that Hillary and the
ads promoting it were the equivalent of express advocacy. Still,
the Supreme Court’s dicta must be respected, see United States
v. Skoien, 614 F.3d 638, 641 (7th Cir. 2010) (en banc), and on the
strength of this part of Citizens United, we said in Madigan that
the “distinction between express advocacy and issue discussion
does not apply in the disclosure context,” 697 F.3d at 484.
    This aspect of Citizens United must be understood in proper
context. The Court’s language relaxing the express-advocacy
limitation applies only to the specifics of the disclosure
requirement at issue there. The Court was addressing the one-
time, event-driven disclosure rule for federal electioneering
communications, see 2 U.S.C. § 434(f), a far more modest
disclosure requirement than the comprehensive, continuous
reporting regime imposed on federal PACs, see id. § 434(a)–(b),
or even the less burdensome disclosure rule for independent
expenditures, see id. § 434(c). When the Court said that
“disclosure is a less restrictive alternative to more comprehen-
sive regulations of speech,” Citizens United, 558 U.S. at 369, it
was talking about the disclosure requirement for electioneering
communications. In that specific context, the Court declined to
apply the express-advocacy limiting principle. But nothing in
Citizens United suggests that the Court was tossing out the
express-advocacy limitation for all disclosure systems, no
matter how burdensome. To the contrary, the Court spent
several pages explaining that a corporation’s option to form an
affiliated PAC is too burdensome to justify banning the
corporation itself from speaking. Id. at 337–39.
68                              Nos. 12-2915, 12-3046 & 12-3158

    Lifting the express-advocacy limitation more broadly
would have been a major departure from Buckley and is not
likely to have been left implicit. Citizens United approved
event-driven disclosure for federal electioneering communi-
cations—large broadcast ad buys close to an election. In that
specific and narrow context, the Court declined to enforce
Buckley’s express-advocacy limitation, but it went no further
than that.
   So it’s a mistake to read Citizens United as giving the
government a green light to impose political-committee status
on every person or group that makes a communication about
a political issue that also refers to a candidate. That’s what
GAB § 1.28(3)(b) does. During the 30/60-day preelection
periods, all political speech about issues counts as express
advocacy—thus triggering full political-committee status and
other restrictions—if the speaker names and says pretty much
anything at all about a candidate for state or local office.
    This is a serious chill on debate about public issues, which
does not stop during election season. Consider two neighbors
who want to print and distribute flyers encouraging support
for a municipal or school project in their city. If they do so
within the 30/60-day preelection periods, they can’t mention
the positions of any local official running for reelection—say
the mayor or members of the city council or the school
board—for fear of being deemed a political committee and
required to organize, register, and file regular financial reports.
Stating their views on a policy issue and listing the positions of
the candidates—pro or con—might be construed as “support”
or “condemnation” within the meaning of the rule. Or say a
Nos. 12-2915, 12-3046 & 12-3158                                69

local nature club wants to distribute a newsletter throughout
the community educating the public about the positions of
local officials on budgetary support for the parks; it can’t do so
during the preelection period without risking being required
to register and report as a PAC. A grass-roots Tea Party issue-
advocacy group might be considered a regulable state PAC if
during the preelection blackout period, it publishes a pamphlet
complaining about high taxes or intrusive regulation and
listing the voting records of state legislators on these subjects.
Indeed, the antifilibuster issue ads at stake in Wisconsin Right
to Life II would be deemed fully regulable under GAB
§ 1.28(3)(b) if aired during the 30/60-day preelection periods.
    Other examples can be imagined, but this gives a general
sense of the chilling effect of this overbroad rule. At the low
$300 statutory spending threshold (until recently, a mere $25!)
ordinary citizens and interest groups are forced into the state
PAC system—with all its restrictions and registration and
reporting requirements—if their advocacy on public issues in
the lead-up to an election also mentions a candidate. Failure to
organize, register, and report as a PAC, as required by the rule,
carries civil and criminal penalties. See WIS. STAT . §§ 11.60,
11.61.
   The Board offers no substantive justification for the
extraordinary reach of this rule. Instead, it relies summarily on
McConnell, which rejected a vagueness and overbreadth
challenge to similar “support” or “oppose” language in BCRA
specifying when a communication by a state or local party
committee counts as “[f]ederal election activity” and becomes
subject to BCRA’s source and amount limitations on contribu-
70                              Nos. 12-2915, 12-3046 & 12-3158

tions to political parties. See McConnell, 540 U.S. at 170 n.64; see
also Madigan, 697 F.3d at 486. In this part of McConnell, the
Court held that the phrases “promotes or supports a candidate
for [federal] office” and “attacks or opposes a candidate for
[federal] office” are clear enough for a state party committee to
know when it has crossed into federal regulatory territory.
    The context here is very different. The First Amendment
vagueness and overbreadth calculus must be calibrated to the
kind and degree of the burdens imposed on those who must
comply with the regulatory scheme. The greater the burden on
the regulated class, the more acute the need for clarity and
precision. Political-party committees can afford campaign-
finance lawyers to advise them about compliance with the
rules and restrictions on hard and soft money, which was the
relevant context of this part of McConnell. In significant
contrast, under GAB § 1.28, ordinary citizens, grass-roots issue-
advocacy groups, and § 501(c)(4) social-welfare organizations
are exposed to civil and criminal penalties for failing to register
and report as a PAC if they spend more than $300 to communi-
cate their views about any political issue close to an election
and include the name or likeness of a candidate in a way that
could be construed by state regulators as a reference to the
candidate’s qualifications or as “support” or “condemnation”
of the candidate’s record or positions. Nothing in McConnell
authorizes this.
    The Board also relies on a passage in Madigan approving
language in the Illinois campaign-finance code that keys that
state’s regulation of ballot-initiative activity to the making of
contributions or expenditures for the purpose of “advocating
Nos. 12-2915, 12-3046 & 12-3158                                 71

the defeat or passage of” an initiative. 697 F.3d at 485. This is
the language of express advocacy and does not implicate
Buckley vagueness and overbreadth concerns. This part of
Madigan does not help the Board here.
    Accordingly, the second sentence of GAB § 1.28(3)(b) is
unconstitutional and must be enjoined. What’s left of subsec-
tion (3)(b) basically tracks the boundaries for express advocacy
and its functional equivalent established in Buckley, McConnell,
and Wisconsin Right to Life II. For the most part (we’ll discuss
the qualifier in a moment), the remaining text of
subsection (3)(b) survives review under current doctrine. The
text essentially clarifies that a communication is made for a
“political purpose” only if it contains either Buckley’s “magic
words” or their “functional equivalents with reference to a
clearly identified candidate and unambiguously relates to the
campaign of that candidate” or, alternatively, is “susceptible of
no reasonable interpretation other than as an appeal to vote for
or against a specific candidate.” GAB § 1.28(3)(a)–(b). As long
as this definition is applied in a manner consistent with the
lead opinion in Wisconsin Right to Life II, it withstands scrutiny,
at least as the Supreme Court’s caselaw stands right now.
Injunctive relief against this part of the rule was properly
denied.
    This brings us to GAB § 1.91, which raises a related but
slightly different concern. The Board adopted this rule in the
immediate aftermath of Citizens United to bring all independent
groups—including newly liberated independent advocacy
groups that operate in the corporate form—under the umbrella
of the regulatory scheme. Wisconsin Right to Life argues that
72                                    Nos. 12-2915, 12-3046 & 12-3158

§ 1.91 is unconstitutional to the extent that it imposes PAC-like
burdens on independent groups not under the control of a
candidate or candidate’s committee and not engaged in
express advocacy as their major purpose.22 Once again, this
argument draws on a limiting principle announced in Buckley.
    To avoid overbreadth concerns in this sensitive area,
Buckley held that independent groups not engaged in express
election advocacy as their major purpose cannot be subjected
to the complex and extensive regulatory requirements that
accompany the PAC designation. 424 U.S. at 79 (“To fulfill the
purposes of the [FECA,] [political-committee requirements]
need only encompass organizations that are under the control
of a candidate or the major purpose of which is the nomination
or election of a candidate.”). The Court has repeatedly


22
  The district court did not address § 1.91 on the merits, concluding instead
that the challenge was moot because the emergency rule expired while the
case was on hold awaiting a decision from the state supreme court. The
emergency rule was replaced by a permanent rule that is identical in all
m aterial respects. Still, regarding this claim, the Board has staked its
appellate fortunes entirely on mootness.

     The Board explains that the permanent rule was renumbered to correct
an alphabetizing error and insists that this technical change required
Wisconsin Right to Life to amend its complaint if it wanted to keep this
claim alive. Not so. The expiration of a temporary rule “will not moot an
attack … if there is a reasonably concrete basis to anticipate that the expired
rule will be reenacted in a form that will raise the same questions.”
13C C H A RLES A LA N W RIGH T , A RTH U R R. M ILLER & E D WA RD H. C O O PER ,
F ED ER A L P RAC TIC E A N D P RO C ED U RE § 3533.6 (3d ed. 2008). W hat was
subsection (f) in the emergency rule is now subsection (g) in the permanent
rule, but in all material respects, the permanent and emergency rules are
identical. This claim is not moot.
Nos. 12-2915, 12-3046 & 12-3158                                   73

reaffirmed this principle. See Wis. Right to Life II, 551 U.S. at 477
n.9 (“PACs impose well-documented and onerous burdens,
particularly on small nonprofits.”); FEC v. Mass. Citizens for
Life, Inc., 479 U.S. 238, 254–56 (1986) (noting that PAC burdens
“may create a disincentive” to engage in political speech
because the applicable duties and restrictions “require a far
more complex and formalized organization than many small
groups could manage”).
   But it’s also clear that outside groups—even those whose
major purpose is not express advocacy—are not completely
immune from disclosure and disclaimer rules for their occa-
sional spending on express election advocacy. Citizens United,
558 U.S. at 366–69. Even so, the Court has never endorsed
imposing full, formal PAC-like burdens on these speakers.
    Madigan explained that the “‘major purpose’ limitation, like
the express-advocacy/issue-discussion distinction, was a
creature of statutory interpretation, not constitutional
command.” 697 F.3d at 487. The Board takes this statement to
mean that the so-called “major purpose test” in campaign-
finance law no longer exists. That’s incorrect. The major-
purpose limitation announced in Buckley has not receded from
the scene. It continues in force and effect as an important check
against regulatory overreach and becomes more significant as
the scope and burdens of the regulatory system increase.
   Madigan declined to apply the major-purpose limitation to
the Illinois disclosure system because state law defined
“political committee more narrowly than FECA by covering
only groups that accept contributions or make expenditures
‘on behalf of or in opposition to’ a candidate or ballot
74                                   Nos. 12-2915, 12-3046 & 12-3158

initiative.” Id. at 488. “This definition,” we said, “is more
targeted to campaign-related speech than FECA’s definition of
contribution and expenditure, which applies to anything of
value given or received ‘for the purpose of … influencing’ an
election.” Id. (citing 2 U.S.C. § 431(8)–(9)).23
    In contrast, Wisconsin law suffers from the same kind of
overbreadth as the federal statute at the time of Buckley, so the
major-purpose limitation has the same significance here as it
did there. Under GAB § 1.91, any organization that makes
“independent disbursements” is required to comply with
almost all of the statutory obligations imposed on political
committees. It must: (1) organize and register like a political
committee (this requires, among other things, a segregated
depository account and a treasurer who is subject to personal
liability for regulatory violations); (2) pay the annual fee as
required by section 11.055; (3) file the oath for independent
disbursements under section 11.06(7) and update it as neces-
sary; (4) comply with the attribution requirements of section
11.30(1) and (2); and (5) file detailed, year-round financial
reports as required by Chapter 11 and include “all contribu-
tions received for independent disbursements, … and inde-
pendent disbursements made.” GAB § 1.91(3)–(8). Again, a



23
  Other circuits have taken varying approaches to Buckley’s major-purpose
principle when reviewing state campaign-finance systems. See Minn.
Citizens Concerned for Life, Inc. v. Swanson, 692 F.3d 864, 872–76 (8th Cir.
2012); Nat’l Org. for Marriage v. McKee, 649 F.3d 34, 58–59 (1st Cir. 2011);
Human Life of Wash. Inc. v. Brumsickle, 624 F.3d 990, 1009–12 (9th Cir. 2010);
N.M. Youth Organized v. Herrera, 611 F.3d 669, 677–79 (10th Cir. 2010); N.C.
Right to Life, Inc. v. Leake, 525 F.3d 274, 287–90 (4th Cir. 2008).
Nos. 12-2915, 12-3046 & 12-3158                                                               75

mere $300 in contributions or disbursements triggers all these
PAC requirements.24
    In essence, GAB § 1.91 establishes by rule a special PAC-like
disclosure program for “independent disbursement organiza-
tions,” a nonstatutory category of political speakers.25 Disclo-
sure rules are reviewed under intermediate scrutiny, see
Citizens United, 558 U.S. at 366–67, which though less rigorous
than strict scrutiny nonetheless requires close judicial review,
see McCutcheon, 134 S. Ct. at 1445–46 (“[R]egardless whether
we apply strict scrutiny or Buckley’s ‘closely drawn’ test, we
must assess the fit between the stated governmental objective
and the means selected to achieve that objective.”).
    “‘[C]ompelled disclosure, in itself, can seriously infringe on
privacy of association and belief guaranteed by the First
Amendment.’” Davis v. FEC, 554 U.S. 724, 744 (2008) (quoting
Buckley, 424 U.S. at 64). Campaign-finance disclosure systems
implicate two basic concerns. First, forced disclosure of donors
burdens associational privacy interests. See Buckley, 424 U.S. at
66 (“[T]he invasion of privacy of belief may be as great when
the information sought concerns the giving and spending of


24
  The rule does not apply the statutory contribution limits or source bans
to independent-expenditure organizations. The Board acknowledges that
after Citizens United and Barland I, restrictions of this nature are unconstitu-
tional as applied to independent political speakers.

25
  GAB 1284, Independent Disbursements of Corporations and Non-Political
Organizations Guideline (M ay 2012), http://gab.wi.gov/sites/default/files/
g u id e lin e /2 6 /1 2 8 4 _ in d e p e n d e n t_ d isb u rse m e n t_ o rg an izatio ns_p d f_
13708.pdf.
76                              Nos. 12-2915, 12-3046 & 12-3158

money as when it concerns the joining of organizations, for
‘financial transactions can reveal much about a person’s
activities, associations, and beliefs.’” (quoting Cal. Bankers Ass’n
v. Shultz, 416 U.S. 21, 78–79 (1974) (Powell, J., concurring))).
Second, PAC-like registration and reporting requirements
impose heavy administrative burdens, creating disincentives
to participation in election-related speech. See Citizens United,
558 U.S. at 337–38; Mass. Citizens for Life, 479 U.S. at 254–55.
Forced to disclose donors and faced with the complex and
formalized requirements of a PAC-like registration and
reporting system, some groups might conclude that their
“contemplated political activity [is] simply not worth it” and
opt not to speak at all. Mass. Citizens for Life, 479 U.S. at 255.
    So the Board must justify this rule under “exacting
scrutiny,” which requires a “substantial” relationship between
the disclosure requirements and an important governmental
interest. See Citizens United, 558 U.S. at 366–67. This is not a
loose form of judicial review:
       In the First Amendment context, fit matters.
       Even when the Court is not applying strict
       scrutiny, we still require “a fit that is not neces-
       sarily perfect, but reasonable; that represents not
       necessarily the single best disposition but one
       whose scope is ‘in proportion to the interest
       served,’ … that employs not necessarily the least
       restrictive means but … a means narrowly
       tailored to achieve the desired objective.” Board
       of Trustees of State Univ. of N.Y. v. Fox, 492 U.S.
Nos. 12-2915, 12-3046 & 12-3158                                77

       469, 480 (1989) (quoting In re R.M.J., 455 U.S. 191,
       203 (1982)).
McCutcheon, 134 S. Ct. at 1456–57. In other words, we look for
“a ‘relevant correlation’ or ‘substantial relation’” between the
stated governmental objective and the means selected to
achieve it. Davis, 554 U.S. at 744 (quoting Buckley, 424 U.S. at
64). Moreover, “the strength of the governmental interest must
reflect the seriousness of the actual burden on First Amend-
ment rights.” Id. “[I]f a law that restricts political speech does
not ‘avoid unnecessary abridgement’ of First Amendment
rights, … it cannot survive [this] ‘rigorous’ review.”
McCutcheon, 134 S. Ct. at 1446 (quoting Buckley, 424 U.S. at 25).
    It’s well accepted that disclosure requirements in the
campaign-finance context serve important governmental
interests by providing the public with information about “who
is speaking about a candidate shortly before an election” and
the sources of funding for campaign-related ads. Citizens
United, 558 U.S. at 369. Here, however, we “find a substantial
mismatch” between that informational objective and the means
the Board has chosen to achieve it. McCutcheon, 134 S. Ct. at
1446. Under GAB § 1.91, every independent group that crosses
the very low $300 threshold in express-advocacy spending
must formally organize, register, and report like a political
committee.
    Why impose full-blown PAC duties so indiscriminately?
The Board does not explain. For groups that engage in express
election advocacy as their major purpose, the PAC regulatory
system—with its organizational prerequisites, registration
duties, and comprehensive, continuous financial reporting—is
78                            Nos. 12-2915, 12-3046 & 12-3158

a relevantly correlated and reasonably tailored means of
achieving the public’s informational interest. But the same
cannot be said for imposing the same pervasive regulatory
regime on issue-advocacy groups that only occasionally
engage in express advocacy.
     A simpler, less burdensome disclosure rule for occasional
express-advocacy spending by “nonmajor-purpose groups”
would be constitutionally permissible under Citizens United,
which approved BCRA’s one-time, event-driven disclosure
requirement for federal electioneering communications—again,
broadcast ads in excess of $10,000 aired close to an election.
558 U.S. at 366–69. That’s a far cry from imposing full PAC-like
burdens on all issue-advocacy groups once a modest annual
spending threshold is crossed. In effect GAB § 1.91 requires
every issue-advocacy group to form a PAC before spending as
little as $300.01 on express advocacy, whether at election time
or any other time of year. Failure to do so brings civil and
criminal penalties.
    We appreciate that the Board is hamstrung by the legisla-
ture’s failure to update Chapter 11 to account for the effect of
Citizens United. Federal law establishes separate disclosure
tracks for political committees, see 2 U.S.C.
§ 434(a)–(b); independent expenditures, see id. § 434(c); and
electioneering communications, see id. § 434(f). Full political-
committee requirements apply only to “major purpose” groups
within the meaning of the Buckley limitation. See Political
Committee Status, 72 Fed. Reg. 5595, 5596–97 (Feb. 7, 2007).
Chapter 11, in contrast, does not distinguish among
independent groups; neither does GAB § 1.91. All individuals
Nos. 12-2915, 12-3046 & 12-3158                            79

and groups that raise and spend money independently of
candidates must register and report like a PAC once the
modest threshold in contributions or expenditures is crossed.
Before Citizens United, this feature in Wisconsin’s state
campaign-finance system was largely obscured because most
independent organizations operate in the corporate form and
as such were completely banned from speaking. If they wanted
to engage in occasional express advocacy, they had to form a
PAC to do it. After Citizens United, the absence of a major-
purpose limiting principle now comes to the fore.
   With the legislature silent, the Board cobbled together a
regulatory response, imposing most of Chapter 11’s political-
committee requirements on all independent organizations
without any scope limitation—that is, without distinguishing
between groups that are organized with express election
advocacy as their major purpose and those that are not.
Groups in the latter category thus face the same dilemma as
they did before Citizens United: They must form a PAC to
engage in occasional express advocacy.
    As applied to these groups—the “nonmajor-purpose”
groups—the Board makes no effort to explain how GAB § 1.91
satisfies the close tailoring required to sustain a disclosure
regime under exacting scrutiny. Instead, it summarily invokes
Citizens United and Madigan, which upheld disclosure require-
ments imposed on independent groups. As we have explained,
GAB § 1.91 imposes far greater burdens on independent
speakers by simply importing the political-committee require-
ments of Chapter 11, which in critical respects are unchanged
from Buckley’s day.
80                             Nos. 12-2915, 12-3046 & 12-3158

    Wisconsin’s foundational campaign-finance law is in
serious need of legislative attention to account for develop-
ments in the Supreme Court’s jurisprudence protecting
political speech. The GAB has the authority to interpret and
implement the statutory scheme, but it cannot contradict
Chapter 11. See WIS. STAT . § 5.05(1)(f); see also Wis. Citizens
Concerned for Cranes & Doves v. Wis. Dep’t of Natural Res.,
677 N.W.2d 612, 617 (Wis. 2004); Seider v. O’Connell,
612 N.W.2d 659, 676 (Wis. 2000). The basic design and primary
requirements of the disclosure system are matters for the state
legislature.
    As it stands, GAB § 1.91 is a reasonably tailored disclosure
rule for independent organizations engaged in express election
advocacy as their major purpose, but the same is not true for
issue-advocacy groups that only occasionally engage in express
advocacy. The public’s informational interest is strong, but
requiring all issue-advocacy groups to comply with
Chapter 11’s burdensome PAC requirements is not a closely
tailored means of achieving it. Accordingly, GAB § 1.91 is
unconstitutional as applied to independent organizations
whose major purpose is not express advocacy. In other
respects, the rule survives First Amendment scrutiny.


     2. Sections 11.12(5)–(6), Reporting of Late Contributions
     and Expenditures
    Wisconsin Right to Life also challenges sections 11.12(5)–(6),
which impose a special reporting requirement for contributions
of $500 or more and expenditures of $20 or more received or
made within 15 days of an election. Until recently, these late
Nos. 12-2915, 12-3046 & 12-3158                                81

contributions and expenditures were subject to a 24-hour
reporting rule if not already included in a preprimary or
preelection report. Wisconsin Right to Life maintains that
24 hours is too short but suggested at oral argument that a
48-hour requirement would likely satisfy close tailoring. The
recent legislation increased the reporting time to 48 hours. See
2013 Wis. Act 153 §§ 13–14.
    This amendment moots the challenge to the 24-hour rule.
See MacDonald v. City of Chicago, 243 F.3d 1021, 1025 (7th Cir.
2001). In response, Wisconsin Right to Life moved to supple-
ment the record with a declaration from the director of its PAC
attesting to the burdens of the new 48-hour reporting require-
ment. The Board rightly objects to the submission of new
factual matter on appeal. See Berwick Grain Co. v. Ill. Dep’t of
Agric., 116 F.3d 231, 234 (7th Cir. 1997) (“The appellate stage of
the litigation process is not the place to introduce new eviden-
tiary materials.”). Wisconsin Right to Life may challenge the
new 48-hour requirement on remand, but it can’t do so for the
first time on appeal.


   3. Section 11.06(7), GAB § 1.42, the Oath for Independent
   Expenditures
    Finally, Wisconsin Right to Life challenges section 11.06(7),
which imposes an oath requirement on individuals and
independent committees before they spend money to support
or oppose a candidate for state or local office. These independ-
ent speakers must affirm that their spending is not coordinated
with the candidate or candidate’s agent. A related administra-
tive rule, GAB § 1.42(1), repeats the statutory requirement and
82                                   Nos. 12-2915, 12-3046 & 12-3158

states that any expenditure made or obligation incurred “in
support of or opposition to a specific candidate” must be made
or incurred “by or through an individual or committee” that
has filed the oath required by section 11.06(7).
    The challenge to the oath requirement is not well-
developed. Wisconsin Right to Life argues in very general
terms that (1) the requirement is too burdensome because
political interests are unpredictable and change rapidly in
response to events unfolding in real time during an election;
and (2) the rule is especially burdensome for small committees
like the Wisconsin Right to Life PAC. The Board counters that
the oath is a simple, one-page form with an attachment that
lists the candidates to which it applies. This strikes us as a
minimally burdensome regulatory requirement, and it’s
reasonably tailored to the public’s informational interest in
knowing the sources of independent election-related spending.
The district court properly declined to enjoin section 11.06(7)
and GAB § 1.42(1).26




26
  Several other features of the rule raise potentially troubling questions. For
example, the rule creates certain presumptions that could be traps for
unwary independent groups and candidates alike if not interpreted in
accordance with the limits established in Buckley and Wisconsin Right to
Life II, as explained above. See GAB § 1.42(1) (treating expenditures not
preceded by a proper oath as contributions); id. § 1.42(6) (presumption of
coordination). These provisions are not challenged here.
Nos. 12-2915, 12-3046 & 12-3158                              83

                       III. Conclusion
   To sum up, we conclude as follows:
    Corporate-speech ban. Section 11.38(1)(a)1, the ban on
political spending by corporations, is unconstitutional under
Citizens United.
   Cap on corporate fundraising for an affiliated PAC.
Section 11.38(1)(a)3, the cap on the amount a corporation may
spend on fundraising for an affiliated political committee, is
unconstitutional under Citizens United and Barland I.
   Regulatory disclaimer. The lengthy disclaimer requirement
in GAB § 1.42(5) is unconstitutional as applied to 30-second
radio ads and ads of shorter duration.
    Definitions of “political purposes” and “political commit-
tee.” The statutory definition of “political purposes,”
section 11.01(16), and the regulatory definition of “political
committee,” GAB § 1.28(1)(a), are unconstitutionally vague and
overbroad in the sense meant by Buckley and require a
narrowing construction. As applied to political speakers other
than candidates, their campaign committees, and political
parties, the definitions are limited to express advocacy and its
functional equivalent as those terms were explained in Buckley
and Wisconsin Right to Life II.
    PAC Status and PAC-Like Burdens on Issue-Advocacy
Groups. The second sentence of GAB § 1.28(3)(b), which treats
issue advocacy during the 30/60-day preelection period as fully
regulable express advocacy if it mentions a candidate, is
unconstitutional. Similarly, GAB § 1.91, which imposes PAC-
like registration, reporting, and other requirements on all
84                          Nos. 12-2915, 12-3046 & 12-3158

organizations that make independent disbursements, is
unconstitutional as applied to organizations not engaged in
express advocacy as their major purpose.
  The other challenged statutes and rules survive First
Amendment scrutiny.
    On remand the district court shall issue a permanent
injunction consistent with this opinion and the specificity
requirements of Rule 65(d).
                VACATED AND REMANDED WITH INSTRUCTIONS.
Nos. 12-2915, 12-3046 & 12-3158                               85

                         APPENDIX
GAB 1.91 Organizations making independent
disbursements.
(1) In this section:
   (a) “Contribution” has the meaning given in s. 11.01 (6),
       Stats.
   (b) “Designated depository account” means a depository
       account specifically established by an organization to
       receive contributions and from which to make inde-
       pendent disbursements.
   (c) “Disbursement” has the meaning given in s. 11.01 (7),
       Stats.
   (d) “Filing officer” has the meaning given in s. 11.01 (8),
       Stats.
   (e) “Incurred obligation” has the meaning given in
      s. 11.01 (11), Stats.
   (f) “Independent” means the absence of acting in coopera-
       tion 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.
   (g) “Organization” means any person other than an indi-
       vidual, committee, or political group subject to registra-
       tion under s. 11.23, Stats.
86                             Nos. 12-2915, 12-3046 & 12-3158

     (h) “Person” includes the meaning given in s. 990.01 (26),
         Stats.
(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 disbursement.
(3) Upon accepting contributions made for, incurring obliga-
    tions for, or making an independent disbursement exceed-
    ing $25 in aggregate during a calendar year, an organiza-
    tion 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 [B]oard 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.
Nos. 12-2915, 12-3046 & 12-3158                                  87

   (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 any.
   (d) The name, street address, mailing address, and account
       number of the designated depository account.
   (e) A signature of the treasurer for the designated deposi-
       tory account of the organization and 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. 11.055,
    Stats.
(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
88                                  Nos. 12-2915, 12-3046 & 12-3158

     and 11.21 (16), Stats., and include all contributions received
     for independent disbursements, incurred obligations for
     independent disbursements, and independent disburse-
     ments made. When applicable, an organization shall also
     file periodic reports as provided in s. 11.513, Stats.
        Note: Section 11.513, Stats., was repealed by 2011 Wisconsin
           Act 32, section 15. As a result, the last sentence of sub. (8) is
           without effect and the reports described therein are not
           required.

(9) An organization making independent disbursements shall
    comply with the requirements of s. 11.30 (1) and (2) (a) and
    (d), 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 candi-
    date's agent or committee.”
        History: CR 10-087; cr. Register June 2012 No. 678 eff. 7-1-12.

WIS. ADMIN . CODE GAB § 1.91.
