Full opinion text
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, 130 S.Ct. 876, 175 L.Ed.2d 753 (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 unjustifiably 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. Borland (“Borland I”), 664 F.3d 139, 143 (7th Cir.2011). Applying Citizens United, we held that the aggregate contribution limit is unconstitutional as applied to organizations 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, — U.S. -, 134 S.Ct. 1434, 188 L.Ed.2d 468 (2014), which more broadly invalidated the aggregate contribution limit in federal law. 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 definitions 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 Wisconsin 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 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 Borland 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, 339 Wis.2d 243, 810 N.W.2d 356 (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 unconstitutional under Citizens United and our decision in Borland I. Other statutes and rules fail First Amendment standards as applied to independent political speakers. Some of the challenged 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 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 amended 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(l)(a)l (banning corporations from making contributions and disbursements 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 state offices. Wisconsin law prohibits the corporation from contributing to its PAC. See id. § 11.38(l)(a)2. Neither the organization nor its state PAC contributes to candidates or other political committees, nor are they connected with candidates, their campaign committees, or political parties. That is to say, they operate independently of candidates 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 violations. 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 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 comprehensive 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 constitutional 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 case-law, 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 establishes an elaborate regulatory regime for campaign finance in 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 communications. The statutory scheme broadly applies to candidates, then-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 committee.” 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 registered with and is regulated by the state elections agency). But the Supreme Court’s decision in Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d 659 (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 case-law to highlight the doctrine established in Buckley, which addressed a 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 government, “ ‘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 including] discussions of candidates.’ ” Buckley, 424 U.S. at 14, 96 S.Ct. 612 (quoting Mills v. Alabama, 384 U.S. 214, 218, 86 S.Ct. 1434, 16 L.Ed.2d 484 (1966)). 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, 84 S.Ct. 710, 11 L.Ed.2d 686 (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, 96 S.Ct. 612 (quoting Monitor Patriot Co. v. Roy, 401 U.S. 265, 272, 91 S.Ct. 621, 28 L.Ed.2d 35 (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, 96 S.Ct. 612; see also id. at 78-80, 96 S.Ct. 612. Second, because political speech is at the core of the First Amendment right, over-breadth 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, 96 S.Ct. 612. To put the point differently, “ ‘[bjecause First Amendment freedoms need breathing space to survive, government may regulate in [this] area only with narrow specificity’ ” Id. at 41 n. 48, 96 S.Ct. 612 (quoting NAACP v. Button, 371 U.S. 415, 433, 83 S.Ct. 328, 9 L.Ed.2d 405 (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 over-breadth] ... 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, 96 S.Ct. 612 (emphasis added). In other words, the First Amendment forbids the government from regulating political expression that does not “in express terms advocate the election or defeat of a clearly identified candidate.” Id. at 44, 96 S.Ct. 612. 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, 96 S.Ct. 612. In a 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, 96 S.Ct. 612. 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, 96 S.Ct. 612. 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)(l)(C), 441b(a). Buckley held that “[t]o fulfill the purposes 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, 96 S.Ct. 612. Expenditures by political committees “so construed” clearly “fall within the core area sought to be addressed by Congress. They are, by definition, 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 contributions are reviewed under an intermediate standard of scrutiny and may be permissible based on the public interest in preventing quid pro quo corruption, but limits on expenditures get strict scrutiny and usually flunk. See id. at 25-27, 55-56, 96 S.Ct. 612; see also Borland 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 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, 227 Wis.2d 650, 597 N.W.2d 721, 727-28 (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, permanent or temporary, which makes or accepts contributions or makes disbursements, whether or not engaged in activities which are exclusively political.” Wis. Stat. § 11.01(4) (emphasis added). 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). Legislative 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. Chapter 11 provides that “every committee other than a personal campaign committee which makes or accepts contributions, 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) (establishing 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 “aecept[ ] contributions, in-curt ] 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 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 candidates 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). The oath must be refiled 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 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 contributions 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(l)(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(l)(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(l)(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 disbursement, and a statement of its purpose. Id. § 11.06(l)(g). Individuals and committees “not primarily organized for political purposes” need only report disbursements made for the purpose of “expressly advocating] 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). Finally, each financial report must itemize the following: (1) total contributions made, contributions received, and disbursements made during the reporting period and cumulatively 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(l)(i), (k), (L) & (m). Committees and individuals making independent disbursements (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)0'). 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). 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 ll’s application to organizational associations.) Committee status triggers substantial and continuous organizational, registration, 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.” That all-important phrase is defined as follows: (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 influencing 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 expressly advocates the election, defeat, recall or retention 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 advocacy— 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 ElBd § 1.28 (1977); 65 Op. Att’y Gen. at 152-54. A few of -Chapter ll’s other requirements and restrictions are directly or indirectly implicated here. Anonymous disbursements are prohibited. Any advertisement or other 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 disclaimer: “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 (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. 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 II.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.” 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(l)(a)l. 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(l)(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(l)(a)3. The spending limit on fund-raising 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, 156 Wis.2d 28, 456 N.W.2d 809, 826-29 (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 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 disapproval. 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 complaints 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 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 rule-making, 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 defendants.” 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, 96 S.Ct. 612). Next, to qualify as “express advocacy” within the meaning of section 11.01(16), a communication “must contain explicit 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 ElBd § 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 Manufacturers & 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 ”), 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 IP’), 233 F.Supp.2d 1078, 1083-84 (W.D.Wis.2002) (quoting 2001 Wis. Act 109 § 1 ty). This expansion of the regulatory system was not designed to stick. The legislature included a nonseverability clause and a fairly obvious poison pill. Section luck (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 disbursements to be made.’ ” Id. at 1090 (quoting 2001 Wis. Act 109 § luck) (emphasis omitted). Failure to file the minimum 31-day notice meant a total speech blackout: no political communications 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 lawmakers 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 provision as an unconstitutional form of prior restraint on speech. Wis. Realtors II, 233 F.Supp.2d at 1090-93. By operation 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. Instead, the momentum runs in the opposite direction. The most recent statutory amendments are modestly de regulatory: 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, 441a441i, 441k). McCain-Feingold brought a subset of issue advocacy 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 corporations and labor unions from making contributions or expenditures 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 contributed $1,000 or more for the electioneering communications. Id. § 434(f)(l)-(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, 124 S.Ct. 619, 157 L.Ed.2d 491 (2003). As relevant here, the Supreme Court rejected a facial challenge to the ban on 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, 124 S.Ct. 619. Still, the Court acknowledged that the limitation was “born of an effort to avoid [the] constitutional infirmities” of vagueness and over-breadth, id. at 192, 124 S.Ct. 619, 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, 124 S.Ct. 619 (emphasis added). This left the door open for as-applied challenges. But the Court did not explain what it meant by “functional equivalence.” 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. 88,124 S.Ct. 619. 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, 127 S.Ct. 2652, 168 L.Ed.2d 329 (2007). 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, 127 S.Ct. 2652. 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 460,127 S.Ct. 2652. 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, 127 S.Ct. 2652 (Sealia, 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, 127 S.Ct. 2652 (opinion of Roberts, C.J.) The Chief Justice explained that “[pjrior to BCRA, corporations were free under federal law to use independent expenditures 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, 127 S.Ct. 2652. But BCRA “ma[de] it a federal crime for any corporation to broadcast, shortly before an election, any communication that names a federal candidate for elected office and is targeted to the electorate.” Id. at 455-56, 127 S.Ct. 2652. The law had “survive[d] strict scrutiny [in McConnell ] to the extent it regulates express advocacy or its functional equivalent,” id. at 465, 127 S.Ct. 2652, 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 interpretation other than as an appeal to vote for or against a specific candidate.” Id. at 469-70, 127 S.Ct. 2652. 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, 127 S.Ct. 2652; (2) “contextual factors ... should seldom play a significant role in the inquiry,” id. at 473-74, 127 S.Ct. 2652; (3) because the government has the burden of justifying restrictions on political speech, the speaker gets the benefit of any doubt, id. at 464-65, 127 S.Ct. 2652; and (4) if an ad “may reasonably be interpreted as something other than as an appeal to vote for or against a specific candidate, ... [then it is] not the functional equivalent of express advocacy,” id. at 476, 127 S.Ct. 2652. 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 consistent 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, 127 S.Ct. 2652. 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 communications was unconstitutional as applied to Wisconsin Right to Life’s speech. Id. at 481,127 S.Ct. 2652. 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 broaden the scope of the campaign-finance system to cover a subset of issue ads akin to the “electioneering communications” 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. 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 committee” as “every committee which is formed primarily to influence 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: (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.” ElBd § 1.28(2) (2001) (emphases added). In short, the agency clarified that the requirements of Chapter 11 applied only to (1) candidates and their committees; and (2) committees formed primarily to influence elections (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 purposes or spent money for communications containing express 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 thereafter embarked on a project aimed at bringing a wide swath of issue advocacy within the regulatory scheme. 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. 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 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. While it was in the final stages of the administrative process, however, the Supreme Court decided Citizens United, overruling 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 365-66,130 S.Ct. 876. 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 expenditures for express advocacy and electioneering communications. Id. at 321-22, 130 S.Ct. 876. Citizens United, a nonprofit corporation, produced 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 candidate. Id. at 319-20, 130 S.Ct. 876. To promote the movie, the group produced several ads to air on broadcast and cable networks. Id. at 320, 130 S.Ct. 876. 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, 130 S.Ct. 876. 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, 130 S.Ct. 876. Following reargument, the Court issued its course-changing decision in January 2010. The Court began by holding that Hillary arid the ads promoting it were the functional equivalent of express advocacy under Wisconsin Right to Life II and thus fell within BCRA’s ban on corporate electioneering communications. Id. at 324-25, 130 S.Ct. 876. 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, 130 S.Ct. 876. 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, 130 S.Ct. 876. “PACs are burdensome alternatives ... [,] expensive to administer and subject to extensive regulations,” id., and they must “comply with these regulations just to speak,” id. at 338, 130 S.Ct. 876. Because these regulatory burdens are “onerous,” the PAC system is nearly “the equivalent of prior restraint.” Id. at 335, 130 S.Ct. 876. And because the law was “an outright ban, backed by criminal sanctions,” id. at 337, 130 S.Ct. 876, its chilling effect on core First Amendment speech rights was severe, making ad hoc, as-applied remedies seriously deficient, id. at 335-37, 130 S.Ct. 876. Accordingly, the Court reconsidered and partially overruled McConnell, facially invalidating the ban on corporate and union election-related spending. Id. at 365-66, 130 S.Ct. 876 (also overruling Austin v. Michigan Chamber of Commerce, 494 U.S. 652, 110 S.Ct. 1391, 108 L.Ed.2d 652 (1990), on which McConnell had relied). Importantly here, Citizens United restored some earlier understandings about the constitutional limits on the government’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, 130 S.Ct. 876 (quoting First Nat’l Bank of Bos. v. Bellotti, 435 U.S. 765, 784, 98 S.Ct. 1407, 55 L.Ed.2d 707 (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, 130 S.Ct. 876. 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, 130 S.Ct. 876. 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.” i Id. at 360, 130 S.Ct. 876. Accordingly, the Court held as a matter of law that “independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption.” Id. at 357, 130 S.Ct. 876. 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 365,130 S.Ct. 876. 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 required a showing of “a ‘substantial relation’ between the disclosure requirement and a ‘sufficiently important’ governmental interest.” Citizens United, 558 U.S. at 366-67, 130 S.Ct. 876 (quoting Buckley, 424 U.S. at 64, 66, 96 S.Ct. 612). 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, 130 S.Ct. 876. 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 authorized 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, 130 S.Ct. 876. This modest requirement easily cleared the intermediate-scrutiny 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, 130 S.Ct. 876 (upholding the disclaimer rule as applied to the ads); see also id. at 371, 130 S.Ct. 876 (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 communications 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 contributors [donors who contributed $1,000 or more to the expenditure].” Id. at 366, 130 S.Ct. 876 (citing 2 U.S.C. § 434(f)(l)-(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, 130 S.Ct. 876 (upholding the disclosure rule with respect to the ads); see also id. at 371, 130 S.Ct. 876 (summarily upholding 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, 130 S.Ct. 876 (“[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 equivalent of express advocacy, so this argument no longer mattered. Id. at 324-25,130 S.Ct. 876. Finally, the Court reaffirmed that the disclosure requirement 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, 130 S.Ct. 876 (citing McConnell, 540 U.S. at 198, 124 S.Ct. 619). 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(l)(a)l, the statutory ban on corporate political expenditures. The agency then promulgated an emergency rule