[EL] 7th circuit john doe opinon

[Rick Hasen]

Since it has been referenced today, here's last year's opinion and an 
excerpt (with my emphasis):

http://electionlawblog.org/wp-content/uploads/7th-john-doe.pdf

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 speech implies, 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 district court thought that the Supreme 
Court will overrule what remains of Buckley, as some Justices have pro- 
posed. See, e.g., Colorado Republican Federal Campaign Committee v. FEC, 
518 U.S. 604, 635–40 (1996) (Thomas, J., dissenting in part). If the 
Constitution forbids all regulation of campaign contributions, there is 
no basis for regulating coordination either. After all, the rationale 
for regulating coordination has been to prevent evasion of contribution 
limits and ensure the public identification of persons who contribute to 
politicians’ war chests.
*
**Yet although the Court’s views about the proper limits of 
campaign-finance regulation continue to change, see Citizens United 
(overruling part of McConnell) and McCutcheon v. FEC, 134 S. Ct. 1434 
(2014) (overruling a portion of Buckley that dealt with aggregate 
contribution limits across multiple candidates), it has yet to 
disapprove the portion of Buckley holding that some regulation of 
contributions to candidates is permissible. Justice Thomas wrote 
separately in McCutcheon, 134 S. Ct. at 1462–65 (concurring in the 
judgment), precisely because a majority was unwilling to revisit that 
aspect of Buckley. The district court’s belief that a majority of the 
Court eventually will see things Justice Thomas’s way may or may not 
prove correct, but as the Supreme Court’s doctrine stands it is not 
possible to treat as “bad faith” a criminal investigation that reflects 
Buckley’s interpretation of the First Amendment. Nor does it help 
plaintiffs to accuse defendants of “retaliation”. That just restates the 
point that campaign finance regulation concerns speech; it does not help 
to decide whether a particular kind of regulation is forbidden.* Cf. 
Fairley v. Andrews, 578 F.3d 518, 525 (7th Cir. 2009).

What we have said shows not only that an injunction was an abuse of 
discretion but also that all defendants possess qualified immunity from 
liability in damages. Public officials Nos. 14-1822 et al. 11 can be 
held liable for violating clearly established law, but not for choosing 
sides on a debatable issue. See, e.g., Wilson v. Layne, 526 U.S. 603, 
618 (1999) (“If judges … disagree on a constitutional question, it is 
unfair to subject police to money damages for picking the losing side of 
the controversy.”). The district court thought the law clearly 
established because, after all, the First Amendment has been with us 
since 1791. But the right question is what the Constitution means, 
concretely, applied to a dispute such as this. The Justices forbid the 
use of a high level of generality and insist that law is not “clearly 
established” until “existing precedent [has] placed the statutory or 
constitutional question beyond debate.” Ashcroft v. al-Kidd, 131 S. Ct. 
2074, 2083 (2011). See also, e.g., Plumhoff v. Rickard, 134 S. Ct. 2012 
(2014); Wood v. Moss, 134 S. Ct. 2056 (2014).

Plaintiffs’ claim to constitutional protection for raising funds to 
engage in issue advocacy coordinated with a politician’s campaign 
committee has not been established “beyond debate.” To the contrary, 
there is a lively debate among judges and academic analysts. 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. This makes it 
unnecessary for us to consider whether any defendant also enjoys the 
benefit of absolute prosecutorial immunity, which depends on the 
capacities in which they may have acted at different times. See Buckley 
v. Fitzsimmons, 509 U.S. 259 (1993).

-- 
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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