[EL] Wisconsin John Doe decision
Rick Hasen
rhasen at law.uci.edu
Wed May 7 07:32:38 PDT 2014
Brad (and the judge) may be right on the end result. I haven't followed
this quite closely enough to have a strong and fully informed opinion.
But I am concerned about the broad language of the opinion. I do think
this ruling breaks new ground and goes much further than even Citizens
United and McCutcheon. While the Supreme Court is willing to tolerate
circumvention of rules in the name of the First Amendment, this ruling
celebrates it. Further, it sees extensive cooperation between candidate
campaigns and outside groups as well protected by the First Amendment
when in fact it is the presence or absence of this cooperation which has
been key in creating the dividing line between contributions and
expenditures. By blurring the rationales between contributions and
expenditures, and by solidifying the distinction between express
advocacy and issue advocacy, the opinion, if it stands, would lead to
even further deregulation of the political system.
On 5/7/14, 6:52 AM, Smith, Brad wrote:
> This is an extremely important ruling. Under the theory advanced by
> the state, a great many of the individuals on this list, and the
> organizations with which many are affiliated, including many "reform"
> organizations, could be subjected to the same type of investigations
> that were underway in Wisconsin. People in politics know each other
> and work together on projects. Issues can and do affect campaigns for
> office. The decision does not dramatically alter federal law, but it
> makes clear that sweeping allegations of "coordination," and ensuing
> investigations, cannot be used as a substitute for the outright
> suppression of speech that many wish were in the law.
>
> Coordination allegations are easily made. We know, for example, that
> Craig Holman is up on the Hill all the time, and we know some of the
> members with whom he speaks; we know of Trevor Potter's tight
> relationship with certain members of the Keating 5; we know that Fred
> Wertheimer and Norm Ornstein work closely with various members. We
> know that the groups with which they are affiliated trumpet issues of
> importance to these members, often favorably quote these members,
> sometimes give them awards at big dinners in New York City that raise
> hundreds of thousands for the Brennan Center, which can put those
> funds back into promoting these same issues and the candidates
> affiliated with them. A knows B who knows C who knows D, and they are
> all talking about X. Voila! Coordination! If, as most in the reform
> camp argue, there need be no election advocacy to bring an allegedly
> coordinated communication within the regulatory purview of the law,
> than the routine communications by all these groups could easily be
> deemed "coordinated." Fortunately, there has generally been some
> self-restraint in pushing coordination allegations, perhaps because
> all involved realize that under the expansive theories of
> "coordination" some advocate, a huge swath of routine and highly
> valuable political activity would suddenly be illegal.
>
> But allegations are made at times, and once made, coordination
> investigations are among the most intrusive the government can
> undertake. By definition, they involve pawing through organizational
> records, learning who meets with whom, what they talk about, how
> officeholders and advocacy groups coordinate messages and work to pass
> legislation. They involve numerous depositions and demands for
> countless documents. Conducting these investigations under criminal
> law - and in secret, no less - merely makes the problem greater. Jim
> Bopp, Heidi Abegg and others have written about this at length in
> numerous law review pieces. Steve Hoersting and I addressed the
> problem in an Election Law Journal article, "A Toothless Anaconda,"
> and also in my Statement of Reasons in FEC MUR 4626, available here:
> http://www.fec.gov/members/former_members/smith/smithreason6.htm. As I
> note in the outset to that SOR,
>
> "Despite the fact that the Commission has now found no violations in
> this case, I strongly suspect that the original complainant, the
> Democratic National Committee, considers its complaint to have been a
> success. The complaint undoubtedly forced their political opponents
> to spend hundreds of thousands, if not millions of dollars in legal
> fees, and to devote countless hours of staff, candidate, and executive
> time to responding to discovery and handling legal matters. Despite
> our finding that their activities were not coordinated and so did not
> violate the Act, I strongly suspect that the huge costs imposed by the
> investigation will discourage similar participation by these and other
> groups in the future."
>
> There are very few federal court decisions on coordination, but they
> have generally taken a similar hard line against the government. See
> FEC v. Christian Coalition, 52 F. Supp.2d 45 (D.D.C. 1999). So in that
> sense, the Wisconsin decision does not make new law. But it does
> emphasize good law in an area that has been largely unsupervised by
> the courts.
>
> A potentially unique element is that Wisconsin substantive law
> requires "express advocacy" even for "coordinated communications."
> This clearly shows the wisdom of having some type of "content
> standard" for determining if something is "coordinated" as a
> threshold barrier to exactly this type of intrusive investigation. As
> I point in MUR 4626 quoted above, absent a "content" threshold,
> coordination allegations are very easy to make and the process is
> itself the punishment, as we saw both in MUR 4626 and in this very
> case in Wisconsin. The key paragraph to understanding yesterday's
> ruling is the paragraph beginning at the bottom of page 19, and
> footnote 7 which immediately precedes this paragraph. I'll quote it
> here in it's entirety,:
>
> "fn.7
> Moreover, if Wisconsin could regulate issue advocacy --- coordinated
> or otherwise --- it
> would open the door to a trial on every ad --on the theory that the
> speaker actually intended to affect
> an election, no matter how compelling the indications that the ad
> concerned a pending legislative or
> policy issue. No reasonable speaker would choose to run an ad . . . if
> its only defense to a criminal
> prosecution would be that its motives were pure.? WRTL at 468.
>
> TEXT: "Defendants' attempt to construe the term --political purposes?
> to reach issue
> advocacy would mean transforming issue advocacy into express advocacy by
> interpretative legerdemain and not by any analysis as to why it would
> rise to the level
> of quid pro quo corruption. As the defendants argue, the Club would
> become a
> --subcommittee? of a campaign committee simply because it coordinated
> therewith.
> Wis. Stat. § 11.10(4). If correct, this means that any individual or
> group engaging in
> any kind of coordination with a candidate or campaign would risk
> forfeiting their right
> to engage in political speech. The legislative tail would wag the
> constitutional dog.8
>
> fn8
> For example, if the Boy Scouts coordinated a charitable fundraiser
> with a candidate for
> office, the Boy Scouts would become a campaign subcommittee subject to
> the requirements and
> limitations of Wisconsin campaign-finance laws, exposing them to civil
> and criminal penalties for
> touting the candidate's support. See, e.g, Clifton v. Fed. Election
> Comm'n, 114 F.3d 1309, 1314 (1st
> Cir. 1997) (--it is beyond reasonable belief that, to prevent
> corruption or illicit coordination, the
> government could prohibit voluntary discussions between citizens and
> their legislators and candidates
> on public issues?). Similarly, if a 501(c)(4) organization like the
> Club coordinated a speech or
> fundraising dinner with a Wisconsin political candidate, all of its
> subsequent contributions and
> expenditures would be attributable to that candidate's committee and
> subject to the limitations of
> Wisconsin law. This would preclude the organization from making any
> independent expenditures
> after initially engaging in coordinated issue advocacy. Wis. Stat.§§
> 11.05(6), 11.16(1)(a). It would
> also bar the organization from accepting corporate contributions which
> could then, in turn, be used for
> independent expenditures. § 11.38."
>
> So this is a very important decision - a ruling the other way would
> have really led to some nasty politics, because, I've noted, it is
> very easy to file these complaints, if there is no content standard,
> and believe me, we would have started to see them being filed all
> over. I have a long list of organizations and their activities and
> contacts that would be ripe for coordination complaints under the type
> of theory advanced here by the State of Wisconsin.
>
>
>
> /Bradley A. Smith/
>
> /Josiah H. Blackmore II/Shirley M. Nault/
>
> / Professor of Law/
>
> /Capital University Law School/
>
> /303 E. Broad St./
>
> /Columbus, OH 43215/
>
> /614.236.6317/
>
> /http://law.capital.edu/faculty/bios/bsmith.aspx/
>
> ------------------------------------------------------------------------
> *From:* law-election-bounces at department-lists.uci.edu
> [law-election-bounces at department-lists.uci.edu] on behalf of
> Confessore, Nicholas [nconfess at nytimes.com]
> *Sent:* Wednesday, May 07, 2014 8:35 AM
> *To:* Law-election at department-lists.uci.edu
> *Subject:* [EL] Wisconsin John Doe decision
>
> Hello everyone,
> Curious to hear folks' opinion on the district judge's ruling in the
> Wisconsin case. Apart from one's views on the politics of the
> investigation, does this ruling change push federal law in a new
> direction on the question of coordination rules? Or is it relatively
> narrow?
> best regards,
> Nick Confessore
>
> --
> Nicholas Confessore
> The New York Times
> W (212) 556-5911
> C (917) 456 2446
> gchat: @nconfessore
>
>
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--
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
949.824.3072 - office
949.824.0495 - fax
rhasen at law.uci.edu
http://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org
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