[EL] Wisconsin John Doe decision

Fri May 9 19:08:48 PDT 2014

Paul,

Backing the conversation up a step: is there any indication that the allegedly coordinated ads were in fact electioneering communications?

The state issued subpoenas to "all or nearly all right-of-center groups and individuals in Wisconsin who engaged in issue advocacy from 2010 to the present." And Judge Randa held both that a typical ad "did not name a candidate and did not coincide with an election" and, pointedly, that WCFG "did not run issue communications related to the Walker campaign or the Walker recall petition." (Pages 3-4). He goes on in footnote 8 to mention a number of scenarios that don't look at all like federal electioneering communications.

I take your point on McConnell. But that was (1) a different statute and (2) a facial ruling. If we are indeed dealing with a situation where *any* issue speech that was coordinated with a candidate is considered a contribution, that's broader than what you cite, which is a federally-defined EC coordinated with a candidate, and presumably the candidate "clearly identified" in the coordinated ad, or perhaps her opponent. That doesn't seem to be Wisconsin's theory.

Put differently: is it your view that ECs (with everything that means) become contributions when coordinated with the named candidate, or that *anything* becomes a contribution if coordinated with *any* candidate? Because, if the latter, the vagueness and overbreadth issues are very different from those considered by the McConnell court.

And even if one subscribes to the broader claim, doesn't an investigation involving early morning, floodlit "raids" (the court's word), and subpoenas sent to nearly every active organization on one side of the political spectrum, a tad bit troubling?

Best,
Allen

Allen Dickerson
Legal Director
Center for Competitive Politics
(703) 894-6800

________________________________________
From: law-election-bounces at department-lists.uci.edu [law-election-bounces at department-lists.uci.edu] On Behalf Of Paul Ryan [PRyan at campaignlegalcenter.org]
Sent: Friday, May 09, 2014 9:18 PM
To: Jboppjr
Cc: law-election at uci.edu
Subject: Re: [EL] Wisconsin John Doe decision

Hmmmmmm. Seems like I don't recall any facts in the Citizens United record related to coordination. Please tell us, Jim, about which electoral opponent of Hillary Clinton Citizens United was discussing movie and movie ad details with.  As CU's counsel before the district court, you'd certainly know these facts.  Was it Barack Obama?  Envisioning Citizens United discussing movie and movie ad details with any of Ms. Clinton's primary opponents is difficult.  I'm very excited to hear the coordination backstory.  Best,

Paul S. Ryan
Sent from a handheld device. Please pardon any typos.

On May 9, 2014, at 8:13 PM, "Jboppjr" <jboppjr at aol.com<mailto:jboppjr at aol.com>> wrote:

Seems like I recall that Citizens United changed the law a bit. Jim Bopp

-------- Original message --------
From: Paul Ryan <PRyan at campaignlegalcenter.org<mailto:PRyan at campaignlegalcenter.org>>
Date: 05/08/2014 10:24 AM (GMT-05:00)
To: law-election at uci.edu<mailto:law-election at uci.edu>
Subject: Re: [EL] Wisconsin John Doe decision

Echoing Trevor¡¯s point about the federal law ¡°electioneering communication¡± standard being a constitutionally permissible bright line test, and pushing back against Jim¡¯s suggestion that such a test is ¡°way overbroad and probably unconstitutional,¡± it¡¯s worth noting that the Supreme Court in McConnell explicitly upheld as constitutional the treatment of coordinated ¡°electioneering communication¡± as contributions, and explicitly rejected Judge Randa¡¯s view that only express advocacy can be subject to a coordination analysis.  The McConnell Court wrote:

Section 202 of BCRA amends FECA . . . to provide that disbursements for ¡°electioneering communication[s]¡± that are coordinated with a candidate or party will be treated as contributions to, and expenditures by, that candidate or party.  The amendment clarifies the scope of the preceding subsection, which states more generally that ¡°expenditures made by any person in cooperation, consultation, or concert, with, or at the request or suggestion of¡± a candidate or party will constitute contributions.  In Buckley we construed the statutory term ¡°expenditure¡± to reach only spending for express advocacy.  BCRA ¡ì 202 pre-empts a possible claim that ¡ì 315(a)(7)(B) is similarly limited, such that coordinated expenditures for communications that avoid express advocacy cannot be counted as contributions.  As we explained above, Buckley's narrow interpretation of the term ¡°expenditure¡± was not a constitutional limitation on Congress' power to regulate federal elections.  Accordingly, there is no reason why Congress may not treat coordinated disbursements for electioneering communications in the same way it treats all other coordinated expenditures.  We affirm the judgment of the District Court insofar as it held that plaintiffs had advanced ¡°no basis for finding Section 202 unconstitutional.¡±

McConnell, 540 U.S. at 202-03 (internal citations omitted).

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> [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of JBoppjr at aol.com<mailto:JBoppjr at aol.com>
Sent: Thursday, May 08, 2014 8:53 AM
To: rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>; TP External
Cc: law-election at uci.edu<mailto:law-election at uci.edu>
Subject: Re: [EL] [Leg] Wisconsin John Doe decision

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<mailto: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 they exist.
>
> Trevor
>
> Sent from my iPad
>
> On May 7, 2014, at 4:40 PM, "Jboppjr" <jboppjr at aol.com<mailto:jboppjr at aol.com<mailto:jboppjr at aol.com%3cmailto: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<mailto:rhasen at law.uci.edu%3cmailto: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<mailto:BSmith at law.capital.edu%3cmailto:BSmith at law.capital.edu>>>,law-legislation at uci.edu<mailto:law-legislation at uci.edu><mailto:law-legislation at uci.edu>,"Confessore, Nicholas" <nconfess at nytimes.com<mailto:nconfess at nytimes.com<mailto:nconfess at nytimes.com%3cmailto: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 ¡ª coordinated or otherwise ¡ª it
> would open the door to a trial on every ad ¨Don 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 ¨Dpolitical 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
> ¨Dsubcommittee¡¬ of a campaign comm