[EL] [Leg] Wisconsin John Doe decision
JBoppjr at aol.com
JBoppjr at aol.com
Thu May 8 05:52:45 PDT 2014
I agree that this is a bright line test but way overbroad and probably
unconstitutional under Citizens United which struck an identical standard.
However, in Wisc there is no such provision. The prosecutors are just
making up the law as they raid innocent people's homes in the middle of the
night with guns drawn (ok maybe they had not drawn their guns -- yet) . Jim
In a message dated 5/7/2014 5:19:18 P.M. Eastern Daylight Time,
rhasen at law.uci.edu writes:
I had inadvertently sent one of my posts to the Legislation list, and
then Trevor and Jim both responded on that list. Bringing this back to
the Election Law list---members should see Trevor and Jim's posts below.
On 5/7/14, 2:16 PM, Trevor Potter wrote:
> The federal election communications standard provides such a bright line
test-- a public advertisement naming a candidate during the election
period ( numbered days) and run in the district or state where the election
occurs....
>
> The FEC coordination regs similarly address this issue by creating
measurable tests . They are not as inclusive as I believe they should be, but t
hey exist.
>
> Trevor
>
> Sent from my iPad
>
> On May 7, 2014, at 4:40 PM, "Jboppjr"
<jboppjr at aol.com<mailto:jboppjr at aol.com>> wrote:
>
> The problem in this area is that without a bright line test for what
communications are political and trigger coordination concerns is that every
allegation of coordination would trigger this type of ugly investigation.
This is intolerable. Jim Bopp
>
>
> -------- Original message --------
> From: Rick Hasen <rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>>
> Date: 05/07/2014 10:32 AM (GMT-05:00)
> To: "Smith, Brad"
<BSmith at law.capital.edu<mailto:BSmith at law.capital.edu>>,law-legislation at uci.edu<mailto:law-legislation at uci.edu>,"Confessore,
Nicholas" <nconfess at nytimes.com<mailto:nconfess at nytimes.com>>
> Subject: Re: [Leg] [EL] Wisconsin John Doe decision
>
>
> 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<mailto:law-election-bounces at department-lists.uci.edu> [law-election-bounces at department-lis
ts.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
>
> --
> 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<mailto:rhasen at law.uci.edu>
> http://www.law.uci.edu/faculty/full-time/hasen/
> http://electionlawblog.org
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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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