[EL] Wisconsin John Doe decision

[Paul Ryan]

Nick,

This ruling flies in the face of longstanding federal law regulation of coordination.  The ad cited by Judge Randa and linked to in footnote 1 of his opinion ends with the statement “Call your state legislator and tell them to vote for Governor Walker’s Budget Repair Bill.”  Judge Randa states that this ad “did not name a candidate,” but then goes on to explain that this and other WCFG ads were aired in the context of Governor Walker’s recall election.  I don’t know when this or other similar WCFG ads were aired.  But I do know this: under the FEC’s coordination rule, an ad meets the “content” standard at 11 CFR 109.21(c)(4) if the ad “refers to a clearly identified . . . candidate” within 90 days of a House/Senate race or within 120 days of a presidential race.  In other words, if a similar ad naming a federal candidate was run within the specified 90/120 pre-election timeframe, it would most certainly be covered by the FEC’s coordination rule.  The FEC, therefore, would then determine whether one or more of the rule’s “conduct” standards was met.

Judge Randa, by contrast, is of the view that only express advocacy communications can be examined in a “coordination” analysis.  And, to this end, Judge Randa invents a new legal concept—“express advocacy money”—which presumably (though it’s not entirely clear from the opinion) is money spent on express advocacy.  Only such “express advocacy money” can be regulated by campaign finance law, he concludes.  And Judge Randa isn’t only referring to independent spending here—he lays out this theory in the context of discussing and citing the Supreme Court’s recent decision in McCutcheon, a contribution limit case.  The Supreme Court flatly rejected this theory in McConnell v. FEC (2003), where the Court upheld the BCRA provision prohibiting candidates/officeholders/national party committees from soliciting or receiving any funds outside of federal contribution limits—the so-called “soft money” ban—regardless of the purpose for which such funds are used.  Put differently, the Supreme Court in McConnell upheld the application of federal law contribution limits with respect to candidates and officeholders, regardless of what the candidates/officeholders use the contribution for.  The Supreme Court has always analyzed coordinated expenditures as in-kind contributions and has never constrained the coordination analysis to express advocacy.

For these reasons, Judge Randa’s opinion conflicts with established Supreme Court precedent and longstanding FEC coordination rules.  If other courts were to follow Judge Randa’s novel, and in my view incorrect, approach to analyzing campaign finance coordination regulations, it would indeed take federal law in a new direction.

Best,

Paul Seamus Ryan
Senior Counsel
The Campaign Legal Center, Recipient of the 2014 MacArthur Award for Creative and Effective Institutions<http://www.macfound.org/maceirecipients/79/>
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From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Confessore, Nicholas
Sent: Wednesday, May 07, 2014 8:36 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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