[EL] Judge Randa Does It Again

[Rick Hasen]

    Judge Randa Does It Again <http://electionlawblog.org/?p=66874>

Posted onOctober 14, 2014 3:07 pm 
<http://electionlawblog.org/?p=66874>byRick Hasen 
<http://electionlawblog.org/?author=3>

Via theMilwaukee Journal Sentinel 
<http://www.jsonline.com/news/statepolitics/judge-says-election-officials-prosecutor-cant-stop-campaign-collaboration-b99371223z1-279187051.html> comes 
news that Judge Randahas issued an order and opinion 
<http://electionlawblog.org/wp-content/uploads/CRG-v-Barland-14C1222.pdf>allowing 
coordination between an outside group and a campaign on First Amendment 
grounds.

I expect this ruling will not stand. To begin with, the last time one of 
Judge Randa's extremely deregulatory campaign finance opinions got to 
the Seventh Circuit, the appellate courtsmacked down Judge Randa's 
reading<http://electionlawblog.org/?p=65859>of the First Amendment rules 
for campaigns and coordination:

    The Supreme Court has yet to determine what "coordination" means. Is
    the scope of permissible regulation limited to groups that advocate
    the election of particular candidates, or can government also
    regulate coordination of contributions and speech about political
    issues, when the speakers do not expressly advocate any person's
    election? What if the speechimplies, rather than expresses, a
    preference for a particular candidate's election? If regulation of
    coordination about pure issue advocacy is permissible, how tight
    must the link be between the politician's committee and the
    advocacy group? Uncertainty is a powerful reason to leave this
    litigation in state court, where it may meet its end as a matter
    of state law without any need to resolve these
    constitutional questions....

    The Supreme Court regularly decides campaign finance issues by
    closely divided votes. No opinion issued by the Supreme Court, or by
    any court of appeals, establishes ("clearly" or otherwise) that the
    First Amendment forbids regulation of coordination between campaign
    committees and issue-advocacy groups---let alone that the First
    Amendment forbids even an inquiry into that topic. The district
    court broke new ground. Its views may be vindicated, but until that
    day public officials enjoy the benefit of qualified immunity from
    liability in damages.

Further, we might invokethe Purcell 
principle<http://www.slate.com/articles/news_and_politics/jurisprudence/2014/10/supreme_court_voting_rights_decisions_contradictions_in_wisconsin_ohio_north.html>even 
here: Judge Randa is changing the rules very close to an election, with 
the risk of confusion about what's legal and the risk of undermining the 
interests in preventing corruption that undergird anti-coordination 
requirements.

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Posted incampaign finance <http://electionlawblog.org/?cat=10>

-- 
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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