[EL] Wisconsin John Doe decision

[Steve Hoersting]

Because content-based restrictions on speech are disfavored and/or
impermissible under the 1st Am, a good way to think about what has come to
be called the "content standard" for commencing a coordination
investigation is "subject matter jurisdiction."

Election Commissions regulate Expenditures (express advocacy, *see Buckley*)
and Electioneering Communications -- and regrettably, some "public
communications". Allowing a coordination investigation to commence into
speech outside these constructs -- on the theory that issue-speech when
coordinated is somehow a campaign finance "contribution" (that is,
something of value given for the purpose of influencing an election) --
would lead to all of the horrors the Wisconsin case illuminates and Brad
well describes above.

To those new to issue: When thinking "content standard," think "subject
matter jurisdiction" for the agency to open a coordination investigation.

Steve


On Wed, May 7, 2014 at 9:52 AM, Smith, Brad <BSmith at law.capital.edu> 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 <614.236.6317>*
>
> *http://law.capital.edu/faculty/bios/bsmith.aspx
> <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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>



-- 
Stephen M. Hoersting
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