[EL] Wisconsin John Doe decision
BZall at aol.com
BZall at aol.com
Wed May 7 07:40:37 PDT 2014
(Hoping this gets through the recent list problems)
Leaving aside the political questions, it's actually an interesting and
potentially substantive decision, but, with all due respect to Rick, it
doesn't break all that much new ground. It goes, as do many recent cases, to the
government's power to suppress speech that isn't directly supporting or
opposing candidates ("express advocacy"), and rejects a prosecution based on
an overly-expansive definition of what can be regulated. IOW, you can't
stretch the rules on express advocacy to cover issue advocacy or lobbying. An
important lesson for those who promote additional restrictions on who can
speak and what can be said during elections.
Let me address a couple of background points not covered by Brad Smith's
otherwise excellent recent note:
"The defendants are pursuing criminal charges through a secret John Doe
investigation against the plaintiffs for exercising issue advocacy speech
rights that on their face are not subject to the regulations or statutes the
defendants seek to enforce. This legitimate exercise of O‘Keefe‘s rights as
an individual, and WCFG‘s rights as a 501(c)(4) corporation, to speak on
the issues has been characterized by the defendants as political activity
covered by Chapter 11 of the Wisconsin Statutes, rendering the plaintiffs a
subcommittee of the Friends of Scott Walker ("FOSW") and requiring that
money spent on such speech be reported as an in-kind campaign contribution.
This interpretation is simply wrong."
Slip Op. 12-13. (emphasis added)
"The subpoenas‘ list of advocacy groups indicates that all or nearly all
right-of-center groups and individuals in Wisconsin who engaged in issue
advocacy from 2010 to the present are targets of the investigation. Id., Ex.
34 (O‘Keefe Subpoena); see also Ex. 33 (Wisconsin Political Speech Raid,
Wall Street Journal (Nov. 18, 2013), explaining that the subpoenas target ―
some 29 conservative groups, including Wisconsin and national nonprofits,
political vendors and party committees‖)."
Slip Op. at 8-9. (emphasis added)
The usual split of advocacy speech by c4s is Issue Advocacy (IA), Lobbying,
and Electioneering/PCI (EA for short). The speech here was clearly
lobbying, and grassroots lobbying at that. The elements of lobbying under federal
tax law for a 501(c)(4) are simple: a communication, about specific
legislation, with a view on that legislation, and (because this was grassroots
lobbying) encouraging or urging the public to contact their legislators about
it. See, e.g., Treas. Regs. 1.162-20(b)(2) (made applicable to activities
after 1963 by -20(c). The District Court did not make a mistake by not
calling it lobbying here because Wisconsin law provides that grassroots lobbying
is not subject to its lobbying rules. Wisc. Stat. s. 13.621(1)(f). In other
words, in Wisconsin, it's either IA or EA.
That should have ended the discussion. In Wisconsin, "coordinated
communications" requires EA. "It is undisputed that O‘Keefe and the Club engage in
issue advocacy, not express advocacy or its functional equivalent. Since §
11.01(16)‘s definition of "political purposes" must be confined to express
advocacy, the plaintiffs cannot be and are not subject to Wisconsin‘s
campaign finance laws by virtue of their expenditures on issue advocacy." Slip
Op. 18.
What makes it a bigger case is that the question in coordinated
communication has never been that clear between these three categories federally and
in other states. Does, for example, CoordComms include IA? Never really had
a federal prosecution or enforcement action that was clear enough to make a
distinction. So organizations that want to be compliant shied away from
coordination even on IA. "No transmission of material strategic information
about messaging" is the distilled essence of firewalls.
That was probably much too expansive a definition to be supportable under
the cases, particularly for lobbying. Brad's note covered that. But for
most organizations, it's better to be a coward than a victim of "John Doe"
subpoenas.
That "chill" on entirely permissible speech was exactly what the Supreme
Court has been trying to fix in a whole series of cases since Buckley. See,
e.g., Wisconsin Right to Life: "“Discussion of issues cannot be suppressed
simply because the issues may also be pertinent in an election. Where the
First Amendment is implicated, the tie goes to the speaker, not the censor.”
WRTL, 551 U.S. at 474.
The burden of establishing the required compelling interest supporting
governmental power is on the government, not the speaker. Where “a prohibition
is directed at speech itself, and the speech is intimately related to the
process of governing, ... ‘the burden is on the government to show the
existence of [a compelling] interest’” WRTL, 551 U.S. at 464-65, quoting, First
Nat. Bank of Boston v. Bellotti, 435 U.S. 765, 786 (1978).
To find regulable speech, the WRTL Court applied a text-based inquiry,
looking for references to elections, parties, candidates or an individual’s
character or fitness for office:
Under this test, WRTL’s three 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.
551 U.S. at 469-70 (emphasis added).
This is not Buckley’s inquiry about “magic words” of express advocacy: “
vote for,” “vote against.” Buckley, 424 U.S. at 45. If a communication
includes the “magic words” of express advocacy, it has the “indicia of
express advocacy.”
WRTL is a case about going beyond “magic words” to the “functional
equivalent of express advocacy.” But WRTL’s definition of the “functional
equivalent of express advocacy” is very narrow, based principally on the terms
used in communication, rather than some intent or contextual analysis. “[T]he
functional-equivalent test is objective: “a court should find that [a
communication] is the functional equivalent of express advocacy only if [it] is
susceptible of no reasonable interpretation other than as an appeal to vote
for or against a specific candidate.” Citizens United, 558 U.S. at 324-25,
quoting WRTL, 551 U.S. at 469-70.
So, it's really not that difficult to distinguish a "genuine" IA ad from a
"political" one: “An issue ad’s impact on an election, if it exists at
all, will come only after the voters hear the information and choose—
uninvited by the ad—to factor it into their voting decisions.” WRTL, 551 U.S. at
470 (emphasis added). This is a text-based inquiry, looking for particular
words of invitation to vote a particular way – an “appeal for a vote.”
And, “As should be evident, we agree with Justice SCALIA on the imperative for
clarity in this area; that is why our test affords protection unless an ad
is susceptible of no reasonable interpretation other than as an appeal to
vote for or against a specific candidate.” WRTL, 551 U.S. at 468-69. And
if there's a question or ambiguity, the speech is not regulable.
That's what "the tie goes to the speaker, not the censor" means.
But here someone didn't get the memo. Having tasted blood from an earlier
prosecution, the prosecutors wanted to try again. They couldn't use
Wisconsin's power to limit that speech directly, so they used a "coordinated
communication" standard, which said that the use of a common vendor was a
vehicle to coordinate speech with the Walker campaigns. "The defendants further
argue that the plaintiffs‘ expenditures are brought within the statute
because they were coordinated by enlisting the support of R.J. Johnson, a
representative and agent of FOSW. Coupled with Governor Walker‘s promotion and
encouragement, defendants go on to argue that this activity is the type of
coordination and pre-planning that gives rise to a quid pro quo corruption
appropriate for prosecution." Slip Op. 13. "Common vendor" is an element of
the federal definition of "coordinated communications." So they were trying
to drag non-regulable IA into the regulable EA category by ignoring the
"express advocacy" requirement through use of a "common vendor."
The District Court quickly tore through that theory of doing indirectly
what they could not do directly: "A candidate‘s promotion and support of
issues advanced by an issue advocacy group in its effort to enhance its message
through coordination cannot be characterized as quid pro quo corruption,
"[t]he hallmark of [which] is the financial quid pro quo: dollars for
political favors." Fed. Election Comm’n v. Nat’l Conservative Political Action
Comm’n, 470 U.S. 480, 497 (1985)." Slip Op. 13.
"Coordination does not add the threat of quid pro quo corruption that
accompanies express advocacy speech and in turn express advocacy money. Issue
advocacy money, like express advocacy money, does not go directly to a
political candidate or political committee for the purpose of supporting his or
her candidacy. Issue advocacy money goes to the issue advocacy organization
to provide issue advocacy speech. A candidate‘s coordination with and
approval of issue advocacy speech, along with the fact that the speech may
benefit his or her campaign because the position taken on the issues coincides
with his or her own, does not rise to the level of "favors for cash." Logic
instructs that there is no room for a quid pro quo arrangement when the
views of the candidate and the issue advocacy organization coincide.
"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."
Slip Op. 19.
Bottom line: Prosecutors tried to make issue advocacy into express
advocacy by claiming it was a stealth political ad. They failed, not only because
of Wisconsin's definitions, but also because the First Amendment requires a
strict limit on government's ability to restrict speech around elections.
Not a new concept, but one much discussed these days.
Barnaby Zall
Of Counsel
Weinberg, Jacobs & Tolani, LLP
10411 Motor City Drive, Suite 500
Bethesda, MD 20817
301-231-6943 (direct dial)
bzall at aol.com
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In a message dated 5/7/2014 8:36:02 A.M. Eastern Daylight Time,
nconfess at nytimes.com writes:
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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