By Tara Malloy - The Campaign Legal Center
Passions have clearly been stirred by the recent 4-2 decision by the Wisconsin state supreme court to shut down a state “John Doe” investigation into potentially illegal coordination between the 2012 recall campaign of Gov. Scott Walker and multiple “dark money” groups, including Wisconsin Club for Growth (WCfG) and Wisconsin Manufacturers and Commerce (WMC). Supporters of the decision have claimed the investigation was a “political witch-hunt” reliant on “paramilitary raids”; opponents argued that the judges issuing the decision were on the take because their own recent election campaigns were heavily subsidized by the same groups targeted in the investigation. Lost in the barrage of charges and countercharges, however, is the fact that the actual merits decision of the court is, simply put, a joke.
The joke is not the outcome of the case, although the court’s decision to greatly narrow Wisconsin’s laws regulating coordinated spending will allow huge amounts of “dark money” to flow into state candidate elections in the form of “coordinated issue advocacy.” Instead, the real absurdity lies in the court’s reasoning—or rather, its abdication of any responsibility to engage in reasoned judicial review of the laws at issue.
A fundamental precept of judicial decision-making is that a court should analyze the past precedents that most closely resemble the case at bar to render a decision. In the context of constitutional challenges to campaign finance laws, cases typically fall into three categories: challenges to restrictions on expenditures, challenges to restrictions on contributions and coordinated expenditures, and challenges to disclosure laws. Although the U.S. Supreme Court’s recent campaign finance jurisprudence is, to put it mildly, in upheaval, the Court has been unwavering in distinguishing between expenditure restrictions and contribution restrictions for the purpose of constitutional review, subjecting the former to “strict scrutiny” and the latter to “relatively complaisant review.” It has also been steadfast in supporting the theory that “all expenditures placed in cooperation with or with the consent of a candidate,” i.e., coordinated expenditures, should be treated as “disguised contributions” subject to limitation and disclosure. After all, as the Supreme Court reiterated in FEC v. Colorado Republican Fed. Campaign Comm. (2001) and McConnell v. FEC (2003), “expenditures made after a wink or nod often will be as useful to the candidate as cash.”
It is thus inexplicable that the Wisconsin court decided a constitutional case about coordinated spending without analyzing—or even referencing—a single U.S. Supreme Court case about coordinated spending.
At issue in Wisconsin were state statutes and regulations that treated as contributions all expenditures “made for the purpose of influencing voting at a specific candidate’s election” if such expenditures were “made at the request or suggestion” of a candidate or after “substantial discussion” with the candidate. In the investigation at issue, prosecutors were examining whether WCfG and other outside groups had coordinated their ad campaigns with the Walker campaign in violation of these laws. Instead of really denying the coordinated activity, however, these groups argued that these laws were unconstitutional because they broadly regulated any coordinated ads undertaken “for the purpose of influencing” an election. The petitioners then contended the state could only reach that narrow subset of ads that “expressly advocated” for or against the election of a specific candidate. Any ad that did not meet this standard was “issue advocacy,” according to this theory, and could not be restricted or subject to disclosure even if Walker had called WCfG up and dictated a desired ad script word for word.
The Wisconsin supreme court agreed, and found that Wisconsin’s coordination laws were vague and overbroad because the “for the purpose of influencing” standard might sweep in “constitutionally protected conduct.” It consequently limited the reach of the law to express advocacy, and found that the alleged coordinated issue advocacy conducted by WCfG and other groups was not a legitimate subject for investigation.
But what has the U.S. Supreme Court said on this issue?
In Buckley v. Valeo (1976), the Supreme Court looked at a federal law that was phrased very similarly to the Wisconsin law at issue: the federal definitions of “expenditure” and “contribution” both relied on the broad operative phrase “for the purpose of influencing any election for Federal office.” In the context of independent “expenditures,” the Court feared that this phrase was vague and thus narrowly construed “expenditure” to reach only express advocacy. By contrast, the Court found that the “for the purpose of influencing” language “presents fewer problems in connection with the definition of a contribution,” and the “general understanding” of a contribution included coordinated spending, i.e. “all expenditures placed in cooperation with or with the consent of a candidate.” (Emphasis added.) Thus, the Buckley Court recognized that in connection to political contributions—a category that includes coordinated expenditures—the limiting gloss of express advocacy was not necessary.
In McConnell, the Court reviewed whether Congress could move beyond “express advocacy” to regulate coordinated spending for a certain type of issue advertising, namely “electioneering communications,” defined as broadcast ads that mention a specific candidate 30 days before a primary election or 60 days before a general election. The Court gave this approach the thumbs-up, holding that “Buckley’s narrow interpretation of the term ‘expenditure’ was not a constitutional limitation on Congress’ power to regulate federal elections.” “There is no reason,” it concluded, “why Congress may not treat coordinated disbursements for electioneering communications in the same way it treats all other coordinated expenditures.”
Lastly, a federal district court in Washington, D.C. addressed this exact issue in 1999 in FEC v. Christian Coalition, and it was on this case that Wisconsin grounded its regulation of coordinated spending. The Christian Coalition court rejected an attempt to limit the federal regulation of coordinated spending to the “narrow class of communications” covered by “express advocacy.” Doing so would “collapse the distinction between contributions and independent expenditures in such a way as to give short shrift to the government’s compelling interest in preventing real and perceived corruption that can flow from large campaign contributions.” The court reasoned that “were this standard adopted, it would open the door to unrestricted . . . underwriting of numerous campaign-related communications that do not expressly advocate a candidate’s election or defeat.”
Do these precedents compel the conclusion that Wisconsin’s laws on coordinated spending were constitutional and that the John Doe investigation was justified? Not necessarily, although as CLC argued in its amici brief, they certainly suggest that Wisconsin’s approach to regulating coordinated spending was on solid footing. But Christian Coalition is not binding on Wisconsin courts, however persuasive its discussion of the dangers of an express advocacy standard may be. And it is conceivable that the Wisconsin court could have distinguished the laws considered in McConnell and Buckley, or found that their legal analyses had been superseded or refined by more recent Supreme Court decisions.
The problem is that the Wisconsin court did none of these things. It did not even mention the relevant holdings of these U.S. Supreme Court cases, much less analyze or distinguish them. Insofar as the majority opinion quoted Buckley, it excised Buckley’s discussion of coordinated spending. Indeed, the Wisconsin court did not cite a single Supreme Court case addressing coordinated spending.
Instead, the Wisconsin court cited a bevy of cases concerning independent expenditures—although one of the few constants in Supreme Court campaign finance jurisprudence is the distinction between independent expenditures, on the one hand, and contributions and coordinated expenditures on the other. In reviewing Supreme Court case law, it jumps from Citizens United v. FEC (2010), to FEC v. Wisconsin Right to Life (2007) and to selective parts of Buckley—each of which explicitly and exclusively addresses independent spending. The Wisconsin court also leans heavily on a Seventh Circuit case, Wisconsin Right to Life v. Barland, but this case likewise concerned only independent expenditures—namely, the expenditures of a committee that “operate[d] independently of candidates and their campaign committees.” Nevertheless, the Wisconsin Court cited Barland for the proposition that “Buckley held that the phrase ‘influence an election,’ which also appears in [Wisconsin law], is vague and overbroad”—although of course, Buckley so held only in connection to independent spending, and held the opposite with respect to coordinated spending.
In short, the Wisconsin court cited the wrong precedents and wholly ignored the right ones. It is difficult to reconcile its holding with Buckley or McConnell, as a dissenting opinion by Justice Abrahamson pointed out—and perhaps this is why the majority made no attempt to do so.
When the Wisconsin court’s decision issued, we described it as an “outrageous act of judicial activism.” But this was too kind. “Judicial activism” implies knowledge of the case law and a reasoned decision to change it. Upon reflection, the Wisconsin court’s decision is better characterized as “judicial oblivion”: where a court—whether out of ignorance, willful blindness, or political expediency—closes its eyes to a whole body of controlling case law to reach the result it wants.