[EL] 7th circuit john doe opinon

Sat Jul 18 15:06:47 PDT 2015

Ilya:

The definition of "dark money" for groups is that we do not know about their expenditures; it is that the groups do not disclose the sources of the funds.

Craig Holman, Ph.D.
Government Affairs Lobbyist
Public Citizen
215 Pennsylvania Avenue SE
Washington, D.C. 20003
T-(202) 454-5182
C-(202) 905-7413
F-(202) 547-7392
Holman at aol.com

-----Original Message-----
From: Ilya Shapiro <IShapiro at cato.org>
To: 'Eric J Segall' <esegall at gsu.edu>; Smith, Brad <BSmith at law.capital.edu>; Rick Hasen <rhasen at law.uci.edu>; law-election at UCI.edu <law-election at uci.edu>
Sent: Sat, Jul 18, 2015 3:33 pm
Subject: Re: [EL] 7th circuit john doe opinon

How are they “dark moneyed groups” if everyone knows who they are?

Ilya Shapiro

Senior Fellow in Constitutional Studies,

Editor-in-Chief of the Cato Supreme Court Review

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From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Eric J Segall
 Sent: Saturday, July 18, 2015 2:19 PM
 To: Smith, Brad; Rick Hasen; law-election at UCI.edu
 Subject: Re: [EL] 7th circuit john doe opinon

So, regardless of whether power (in the guise of enforcement of campaign finance laws) was abused in Wisconsin, and regardless of how much Walker himself was personally behind or not behind the various groups at issue, when well-funded and dark moneyed groups support judges with campaign money (and trips) and then those same judges don't recuse themselves in criminal investigations of those groups, we have a serious problem.

 http://talkingpointsmemo.com/cafe/the-inside-story-of-the-crony-court-that-deep-sixed-the-scott-walker-probe

Best,

Eric

From: law-election-bounces at department-lists.uci.edu <law-election-bounces at department-lists.uci.edu> on behalf of Smith, Brad <BSmith at law.capital.edu>
 Sent: Thursday, July 16, 2015 3:37 PM
 To: Rick Hasen; law-election at UCI.edu
 Subject: Re: [EL] 7th circuit john doe opinon 

Thank you. I rest that part of my case.

Bradley A. Smith

Josiah H. Blackmore II/Shirley M. Nault

   Professor of Law

Capital University Law School

303 E. Broad St.

Columbus, OH 43215

614.236.6317

http://law.capital.edu/faculty/bios/bsmith.aspx

From: law-election-bounces at department-lists.uci.edu [law-election-bounces at department-lists.uci.edu] on behalf of Rick Hasen [rhasen at law.uci.edu]
 Sent: Thursday, July 16, 2015 3:21 PM
 To: law-election at UCI.edu
 Subject: [EL] 7th circuit john doe opinon

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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