An attorney for the Second Amendment group Wyoming Gun Owners is challenging a ruling by the Wyoming Secretary of State to disclose the organization’s donors, arguing the ruling is an attempt to stifle political speech.
In a Wednesday letter to the state elections division, lawyer Stephen Klein called on the office to dismiss the complaint filed against the gun rights group. The complaint alleged Wyoming Gun Owners ran a series of attack ads against Republican candidates in the past year despite not being registered with the Wyoming Secretary of State’s office as required by election code.
As a result of the secretary of state’s ruling, the group now has until Nov. 4 to register with the state and disclose its donors or face a $500 fine.
In his letter, Klein cited an alleged lack of documentation showing the advertisements the group ran were actually in violation of the law. Among the targets of those advertisements were Reps. Sandy Newsome and Rep. Bill Pownall, Sens. Michael Von Flatern and Affie Ellis and Republican candidates Ember Oakley and Erin Johnson.
“WyGO has faithfully complied with the law, but is now threatened with fines and potentially prosecution over its political speech — without even knowing just what speech is at issue and why,” wrote Klein, who previously represented the free market think tank Wyoming Liberty Group. “We request at the very least that you provide an explanation of why “the advertisements paid for by WyGO ... are clearly electioneering communications[.]”
While the advertisements in question were not provided as part of the public record, representatives with the Greater Cheyenne Chamber of Commerce – which filed the complaint — provided copies to the Star-Tribune of the exhibits the chamber shared with the state.
The exhibits included several fundraising emails disparaging numerous candidates around Wyoming, photocopies of a political mailer boosting Sen. Anthony Bouchard – who founded the organization more than a decade ago – in his primary bid against Johnson, and an audio recording of a radio advertisement also boosting Bouchard and his voting record.
“This blatant and utter disregard for Wyoming law should not be let go without consequences,” Dale Steenbergen, president & CEO of the Greater Cheyenne Chamber of Commerce, wrote in a letter included with the complaint. “Wyoming voters deserve to know how much money out of state organizations are dumping into our elections and the law requires WyGO to disclose that.”
A loophole in the law?
Klein, however, argues that because the organization never explicitly endorsed Bouchard or any other candidate, the advertisements it produced were in compliance with Wyoming campaign finance law, which broadly define electioneering communications as any advertisement that clearly defines a candidate, “does not expressly advocate the nomination, election or defeat of the candidate,” or “can only be reasonably interpreted as an appeal to vote for or against” a candidate, among numerous other provisions.
“While they’re certainly hard-hitting ads that criticize some candidates, all of them strongly emphasize that commitments have not been made one way or the other as they relate to important gun rights legislation,” Klein said. “WyGO’s history is pretty clear here on this issue. They criticize legislation they don’t like, and they promote legislation they do like as it relates to gun rights, and get commitments from candidates during election season. That is integral to that mission. You have to dance with the law they brought you, not the one you wish existed.”
In his letter — which was also sent to the Star-Tribune — he argued that while the gun ownership group was not registered with the state as a political entity, its speech could be seen as a “continuation” of its lobbying work in the Capitol, noting that “WyGO representatives consistently maintain lobbyist registration for legislative engagement.”
While the organization’s executive director, Aaron Dorr, was properly registered during the 2020 legislative session, according to a cached list accessed at the start of session in February, the organization itself never was.
And while Dorr may have registered properly this past winter, he apparently had not filed his paperwork to conduct lobbying work during the interim legislative session, when a majority of the advertisements ran. As of Wednesday, the organization has no representative actively registered with the secretary of state’s office, according to a roster of registered lobbyists maintained by the office.
However, because the group is not actively working to boost proposed legislation — only highlighting candidates’ previous records — Klein said the organization is not technically lobbying, only informing the public of politicians’ records on various gun bills.
In short: While the group’s ads look like, smell like, and taste like electioneering communications under Wyoming law, there is reason to believe that they could be something else, Klein said. And if the state cannot back up its rationale for labeling the group’s advertisements as illegal communications, then it must dismiss the complaint.
“The idea that ‘you’re taking advantage of a technicality’ is a negative twist on complying with the law,” Klein said. “You can disagree with the tone, and you could disagree with the message, but the idea they can call WyGO ‘lawbreakers’ and the idea they could threaten them with a $500 fine… the law is a series of technicalities. Considering they are regulating political engagement, which is the core of the First Amendment, then yeah, it has to be technical.”
In a briefing with reporters Wednesday afternoon, Secretary of State Ed Buchanan said he had not yet reviewed the letter and did not elaborate on specific details of the case. Because WyGO now has legal representation, the matter will now be referred to Wyoming Attorney General Bridget Hill.
Rep. Tyler Lindholm, R-Sundance, chairs the committee that oversaw the passage of those laws. In an interview Wednesday, he said that while it will ultimately be up to the secretary of state’s office to determine whether Wyoming Gun Owners’ efforts met the existing definition of illegal electioneering, it will be up to the Legislature itself to define whether the intent of the law is enough to prevent those activities from taking place in the future.
Whether that happens, Lindholm said, is another story.
“It’s going to depend on whether the Legislature is more interested in protecting the sanctity of a gun advocacy group that is run by Californians and Iowans, or if they’re actually going to help shed some light on campaign finance,” Lindholm said. “My bet is they’re going to want to protect the gun advocacy group.”