[EL] Wisconsin John Doe decisi

[Scarberry, Mark]

I seriously doubt that "suppress" is used to shame anyone or dissuade them from speaking. It is intended, I think, to bring home the point that the effect of some regulation and in some cases the selected means of accomplishing the intended result is to prevent some speech from taking place.

Some proponents of more regulation would be happy to have no prevention at all -- to have all speech occur that would occur in the absence of regulation -- if different funding sources were used. So do they want to suppress/restrict speech? No, if we ask what they desire to have happen; yes, if we consider someone to intend a result if they know their actions are substantially certain to bring about the result. This is a familiar distinction in legal ( and I think philosophical) discussion.

Then there are regulation proponents who wish to quiet certain voices so that others can be more easily heard, or so that discussion will be balanced, or so that those with lesser resources can have equal impact on political decisions. Those proponents intend to restrict speech even under a narrow definition of intent. They want to use restriction/suppression as a means to reach a goal, even if, in the abstract, they would prefer not to restrict/suppress. Again, this is a standard way of discussing intent. Speech suppression/restriction is not a side effect but rather a means to an end.

Mark

Mark S. Scarberry
Pepperdine University School of Law


Sent from my iPad

On May 7, 2014, at 8:35 AM, "Greg P. Magarian" <gpmagarian at wulaw.wustl.edu<mailto:gpmagarian at wulaw.wustl.edu>> wrote:

I did mistype on the abortion example, and I apologize for reversing my accusatory stereotypes.

I have three problems with the two responses.

Many reformers (a good-faith label I'll happily accept) have argued, over and over, that various expenditures of money shouldn't count as "speech" for First Amendment doctrine. These are hard arguments for me, because I think (based on work by deeper theorists than me) that deciding what counts as speech can't be other than a normatively charged process. I think most people would argue that the money-speech dynamic is a hard problem. You two pretty apparently think it isn't, and that's fine. But I don't think you ought to club me with your certainty or act as if differences on this important point don't exist, if we're going to have a real debate.

Second, many or most reformers believe the regulations we advocate would yield net benefits for free speech -- by, for example, increasing the range and diversity of public debate. Again, I'm fairly sure you two would reject that sort of argument out of hand. Many of us, however, take such arguments very seriously. If we're at all right, then referring to such regulations as "speech suppressive" would be an odd usage. It would be like calling a vaccination that uses a live virus as "disease promoting."

Finally, rhetoric matters. I consider myself a strong civil libertarian and an advocate for campaign finance regulations. You, I suppose, think that's a contradiction. If we were fighting over a referendum or bill, say, calling me out for it might be fair play. But I thought this list was supposed to enable a respectful exchange of ideas along, roughly, the lines of academic best practices. The claim that I want to submerge the terms of the debate is ironic, given that the accuser wants to tar me with labels that deny not just the validity but even the presence of my argument. Claiming that your opponents want to suppress speech isn't engagement; it's shaming. (Do I see this technique on "my side" as well?  Hell yes, and when I'm in my right mind, I don't like it any better.)

These two responses reinforce my unhappy conclusion from Professor Smith's post: that some people in these discussions would rather attack than engage.

And now I'll shut up and retreat to lurking, unless I've botched another simile or something.

Greg

Sent from my iPhone

On May 7, 2014, at 9:59 AM, "Joe La Rue" <joseph.e.larue at gmail.com<mailto:joseph.e.larue at gmail.com>> wrote:

As an aside, I'm not certain how anyone could call someone who is prolife a "baby killer."  As someone who is prolife, I hope you mistyped.

That said, I think that most in the reform community would admit they want to limit speech, which means the same thing as "suppress speech. " After all, they want corporations to be unable to make independent expenditures (that is, to pay for political advertisements, made without coordination with a candidate, that advocate the election or defeat of candidates).  That means they want to limit speech.  It does no good, by the way, to say "corporations are not people."  Whether that's true is immaterial to the point: if the advertisement is not get made, speech is not spoken.  Speech gets suppressed.

Many in the reform community also would like to see caps put on how much individuals and associations may spend on independent expenditures.  Again, this limits, or suppresses, speech.

And of course, the reform community vigorously supports limits on the amount of money one may contribute to a candidate.  The Supreme Court has ruled such contributions are symbolic speech because they indicate support.  Regardless, limits on contributions to candidates impacts how much candidates have available to spend on political advertisements (speech).

So Brad is completely accurate: the reform community wants to suppress speech.  I'm not sure how anyone can argue otherwise.

Joe


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On Wed, May 7, 2014 at 7:40 AM, Greg P. Magarian <gpmagarian at wulaw.wustl.edu<mailto:gpmagarian at wulaw.wustl.edu>> wrote:
Sorry about that. Hand slipped to send on my phone before the hard part of my message:

All that said, I'm very troubled by Professor Smith's assertion / accusation below about "the outright suppression of speech that many wish were in the law."  I've never met anyone who wishes for "the outright suppression of speech."  Many of us obviously disagree on what counts as speech, what counts as suppression, what various policy options will actually do, etc.  I believe a strong regime of campaign finance regulation would promote free speech, as I understand the doctrine. I'm open to arguments that I'm very wrong about that, but I think the accusation that I actively desire speech suppression should be out of bounds in a civil discussion.

Professor Smith's ad hominem aside is a lot like calling all pro-choicers misogynists or calling all pro-lifers baby killlers -- or calling all opponents of campaign finance regulation bagmen for the wealthy. It's a sweeping accusation of active hostility to values that most of us broadly share. It tells me that Professor Smith is someone with whom I can't productively engage intellectually, because he's already ingrained a caricature of me as a Person Who Wants Bad Things. That's a shame, because his formidable body of serious work has often informed and challenged me.

Greg Magarian

Sent from my iPhone

On May 7, 2014, at 8:53 AM, "Smith, Brad" <BSmith at law.capital.edu<mailto: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<tel:614.236.6317>

http://law.capital.edu/faculty/bios/bsmith.aspx

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From: law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu> [law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu>] on behalf of Confessore, Nicholas [nconfess at nytimes.com<mailto:nconfess at nytimes.com>]
Sent: Wednesday, May 07, 2014 8:35 AM
To: Law-election at department-lists.uci.edu<mailto: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

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The New York Times
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