[EL] Wisconsin John Doe decision
JBoppjr at aol.com
JBoppjr at aol.com
Sat May 10 04:33:53 PDT 2014
Hummmmmmmm. But I do seem to recall that CU said that the "electioneering
communication" provision that you want to use as a content test for
coordination is unconstitutional.
Anyone who relies on what is left of McConnell is booking a trip on the
Titanic. Jim
In a message dated 5/9/2014 9:19:22 P.M. Eastern Daylight Time, PRy
an at campaignlegalcenter.org writes:
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 movioe 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 § 202 pre-empts a possible claim that § 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<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_
(mailto: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_
(mailto:BSmith at law.capital.edu<mailto: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<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 comm
=
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