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District 51

Rosie Berger glances at her opponent Bo Biteman for the House District 51 seat during a radio interview Tuesday morning at KROE in Sheridan last year. The 2016 legislative election in Wyoming included the influence of some anonymous advertising.

File, Star-Tribune

An attempt to update and reform Wyoming’s campaign finance laws may have accidentally repealed all regulations covering groups that do not normally participate in political campaigns — even if they sometimes do spend large sums to support political causes.

The Equality State Policy Center, a left-leaning advocacy group, wanted the Legislature to update the state’s transparency requirements for all types of political advertising. Currently the campaign finance regulations only govern advertisements that explicitly ask people to vote a certain way on a candidate or ballot measure. Other ads are exempt, even if they directly address a political issue in a way that might influence voters.

“If I send out a flyer that says: ‘Vote for Sen. Scott,’ that’s obviously an independent expenditure,” said Steve Klein, an election law attorney with the libertarian Wyoming Liberty Group. “If I send out a flyer that says: ‘Sen. Scott really likes puppies’ ... that can be a little more questionable.”

Klein acknowledged that was a silly example, but the issue came up in more serious ways during 2016 races for the Legislature in mailings that, for example, alleged that a Republican candidate wanted to “seize your public lands.”

A big roll back

The Legislature’s Joint Corporations, Elections and Political Subdivisions committee voted at its November meeting in Sundance to require groups to report spending related to political advertising even when it doesn’t include a clear call to action.

But — and it’s a big but — the committee simultaneously appears to have removed the requirement for groups whose main goal is not political advocacy to report any political spending, even traditional independent expenditures that ask voters to elect a particular politician or pass a ballot measure, which they are currently required to disclose.

“We’re improving these definitions but then we’re weakening the reporting requirements,” Equality State’s executive director Phoebe Stoner said. “What’s the point?”

Rep. Dan Zwonitzer, R-Cheyenne, said that while it does appear that all reporting requirements for non-political action committees, or PACs, were eliminated in the bill draft approved by the committee, he’s not quite sure that’s what lawmakers were attempting to do.

“I think several members of the committee were confused,” Zwonitzer said.

The motion to remove the reporting requirement from independent groups came up during the discussion about whether to require transparency for electioneering communications, the advertisements that don’t include a call to action.

Zwonitzer thinks the committee simply voted to exempt independent groups from reporting electioneering communications.

Intent unclear?

Moving away from specific calls to vote for or against a candidate or ballot measure, the line between free speech and campaigning, which requires certain reporting, becomes muddy. Is it free speech or campaigning for a think tank to release a study showing a tax bill would hurt businesses? What if the think tank then takes out an angry billboard with a list of lawmakers who support the tax bill?

Because it can be difficult to draw the line, Zwonitzer said he believes the idea was to exempt the independent groups that don’t primarily engage in political activity from needing to disclose spending on these advertisements, which sometimes fall into a gray area. Only formal political action committees would then need to report those type of advertisements.

What happened was that the committee voted to exempt non-PACs from current requirements to report even explicit political advertising, such as a billboard calling on voters to reelect a given politician.

Klein, with the Liberty Group, said that was the point. For a group that is not a political action committee and doesn’t spend most of its time campaigning, filing paperwork with the Secretary of State’s office and carefully recording donors would be onerous and unfair, he said.

Klein said that while the Liberty Group doesn’t campaign for candidates it does sometimes weigh-in on ballot measures. He believes that courts have rejected laws in other states that require entities like the Liberty Group to file similar paperwork as a political action committee if they occasionally engage in campaigning, as Wyoming law currently requires them to do. Enforcement of campaign laws in Wyoming is currently disorganized, Klein said. But because the committee is also seeking to streamline the enforcement, he anticipates that this issue could soon come to a head.

“The idea that somebody writes a blog post and Wyoming Liberty Group has to report as a PAC? Yeah that’s not happening,” Klein said. “I can tell you we will not be disclosing our donors.”

That is why Klein said he was, in fact, asking the committee to remove that requirement from current state law, which Sen. Wyatt Agar, R-Thermopolis, did with a motion to amend the bill introducing new requirements for electioneering communications.

But Zwonitzer said he doesn’t think that is what the committee’s members thought they were voting on. He said many were under the impression that Agar’s motion was meant only to exempt the independent groups from reporting requirements on electioneering communications — the new part of the law — rather than removing existing reporting rules.

Instead of just freeing groups like the Liberty Group to occasionally put a note on its website calling on voters to reject a certain ballot measure, Zwonitzer is worried that Agar’s amendment would effectively enable explicitly political organizations to configure themselves in such a way that they would not need to report any of their spending — including full-fledged campaigns for or against politicians.

“There’s a whole lot of room for some nefarious actions and what we call dark money entering into political races that can’t be tracked,” Zwonitzer said.

Changes coming

Because of ambiguity in the amendment, Zwonitzer and the other co-chair of the committee, Sen. Cale Case, R-Lander, will meet with the Legislative Service Office sometime in the next week to clarify the committee’s intent.

Zwonitzer said the amendment will likely be changed. Independent groups will still be exempt from reporting on political advertisements that don’t explicitly support or oppose a candidate or ballot measure. But the existing requirements on other political spending by those groups will be put back into the bill. He said he will seek to create a new amendment allowing the committee or full Legislature to remove those existing requirements as well, if it turns out that was the original intent.

Agar did not respond to a request for comment Friday.

Regardless of the committee’s recommendations, the full Legislature must still approve any changes to Wyoming’s campaign finance laws when it meets in February.

Stoner said that she had spoken with the Secretary of State’s Office, which oversees elections in Wyoming, and was told that even with Agar’s amendment independent groups may still be required to report explicit political spending due to language elsewhere in state law.

Klein said that while some reporting requirements currently apply to independent groups in the state, they are likely to be overturned if the state ever seeks to enforce them. His suggestion, he said, will help save the state legal fees and avoid creating a confusing mess of case law on top of Wyoming’s campaign finance statutes.

“It really never ends, and I think the simplest way (to avoid lawsuits) is to keep the law stable and predictable and focus on whether your neighbor can follow them without hiring an attorney and lawyer,” Klein said.

But Zwonitzer and Stoner both dispute the premise of that, arguing that the existing regulations are far from burdensome. Stoner said other changes that Equality State recommended were rejected altogether and that starting to roll back Wyoming’s relatively loose reporting requirements even more was a move in the wrong direction.

“Our campaign finance disclosure laws are consistently ranked as some of the worst in the country,” she said.

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