[EL] Wisconsin John Doe decision

Sat May 10 10:41:04 PDT 2014

Trevor,

Coordinated EXPENDITURES. With "expenditure" being the key word.

What does expenditure mean under our jurisprudence?

Don't say you don't know.

(Ditto the delineated term "electioneering communication.")

Everyone on the listserv ought to look up this provision -- one Larry Gold
pointed up to me 14 years ago -- for, while it hardly tells the whole
story, it is instructive:

2 USC 431(8)(b)(vi)

Best,

Steve

Sent from my phone. Please excuse the all caps in place of bold type.
On May 10, 2014 10:47 AM, "Trevor Potter" <tpotter at capdale.com> wrote:

> The Court said in CU that corporations have the same first amendment
> rights to make independent expenditures as individuals-- not greater
> rights.  The Court has defined such independent expenditures are " wholly",
> " totally" completely" independent of candidates and party committees . The
> Court has upheld limits on the amounts of contributions to candidates by
> individuals, including in kind contributions. It has upheld bans on
> corporate contributions to candidates. So if the amount of individual
> inkind contributions to candidates may be limited, and corporate
> contributions prohibited, WI is on solid footing here.
>
> Sent from my iPhone
>
> On May 10, 2014, at 8:48 AM, "JBoppjr at aol.com<mailto:JBoppjr at aol.com>" <
> JBoppjr at aol.com<mailto:JBoppjr at aol.com>> wrote:
>
> Actually the effect of declaring speech a contribution, by deeming it to
> be coordinated, does prohibit a  corp or labor union from doing it.  CU
> struck down the corp prohibition on doing ECs so labeling ECs as a
> contribution does the same thing and I doubt the Court will buy that.  It
> has nothing to do with "disclosure."  Jim
>
> In a message dated 5/10/2014 8:36:03 A.M. Eastern Daylight Time,
> tpotter at capdale.com<mailto:tpotter at capdale.com> writes:
> What the court said in CU is not that the electioneering communication
> standard was unconstitutional-- it upheld the disclosure provisions of the
> standard 8-1 after all. Rather , the Court's opinion address only the
> portion of that standard that forbade corporations from making such
> communications. Thus, the usefulness of the standard as a descriptor or
> political speech and activity is not impaired by CU.
>
> Trevor Potter
>
> Sent from my iPhone
>
> On May 10, 2014, at 7:34 AM, "JBoppjr at aol.com<mailto:JBoppjr at aol.com
> ><mailto:JBoppjr at aol.com>" <JBoppjr at aol.com<mailto:JBoppjr at aol.com
> ><mailto:JBoppjr at aol.com>> wrote:
>
> 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,
> PRyan at campaignlegalcenter.org<mailto:PRyan at campaignlegalcenter.org
> ><mailto:PRyan 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><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><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><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
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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> [mailto:
> law-election-bounces at department-lists.uci.edu] On Behalf Of
> JBoppjr at aol.com<mailto: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><mailto:
> rhasen at law.uci.edu>; TP External
> Cc: law-election at uci.edu<mailto: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><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%
> 3cmailto:jboppjr at aol.com<http://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%3cmailto:rhasen at law.uci.edu<
> http://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%
> 3cmailto:BSmith at law.capital.edu<http://law.capital.edu>>>>,
> law-legislation at uci.edu<mailto: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%
> 3cmailto:nconfess at nytimes.com<http://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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