Last week the Wisconsin Supreme Court ruled against a motion for reconsideration of its July opinion in the case In the matter of the John Doe Proceeding. In its July ruling, the court upheld the quashing (rejection) of a subpoena that prosecutors used to seize thousands of documents from numerous politically engaged organizations and individuals under a broad allegation of illegal coordination with Governor Scott Walker and his campaign. The latest ruling is an effort to clarify the July decision, requiring prosecutors to return the seized property to its rightful owners and destroy copies except for those entrusted to the clerk of the Wisconsin Supreme Court. The clerk is meant to hold the copies in the event one of the prosecutors in the case (aside from lead prosecutor Francis Schmitz, who the court ruled was illegally appointed) pursues an appeal to the United States Supreme Court. Whether or not there is another appeal, the Wisconsin ordeal appears to be winding down, and with it campaign finance coordination regulation takes a very big—and much needed—step back.
In the Citizens United decision in 2010, the U.S. Supreme Court ruled that corporations and unions must be allowed to spend unlimited amounts of money to advocate for the election or defeat of candidates as part of the First Amendment’s protection for free speech. Reading this, laypersons often believe this means that corporations and unions can give unlimited money to politicians. The two acts may sound similar, but are very different: corporations and unions still cannot contribute money to candidates’ campaigns under federal law or the laws of many states, but can now expend money for just about all other forms of political advocacy. The result of contribution limits are fairly easy for government to implement and for people to follow; the result of expenditure limits are cases like Citizens United, that is, censorship of a movie about a candidate.
Proponents of campaign finance regulation—so-called reformers—are still upset about Citizens United, and would rather the average American not sweat its important distinctions. Reformers have had some great successes following the case, not only with public perceptions but in the courts. Their greatest success is paving the way to expand campaign finance disclosure. Corporations, unions and individuals may speak about candidates, but they must fill out forms with various government agencies or face penalties under federal law and the laws of many states. Disclosure has such reach in some states that political candidates do not even need to be named in speech for it to trigger campaign disclosure: merely spending money on speech about political issues—from tax proposals to gun control—is an invitation to be regulated. Disclosure is a softer censor than bans like the one overturned in Citizens United, but it can be just as effective in muffling speech.
Reformers continue to fight for every inch of disclosure, but they are far from disavowing speech bans. Knowing that contributions may be limited but expenditures may not, reformers’ latest effort is, basically, to turn as many expenditures into contributions as possible. Coordination regulation does just that, and in some situations this makes sense: if a candidate, for example, hands a script for an election advertisement to an organization and asks for it to use the script in a TV ad, if the organization complies it basically serves as an arm of the candidate’s campaign and is contributing to it rather than expending money independently. Regulation is appropriate here, and it is reasonable when left to its proper confines, such as the current federal coordination regulations. What regulation cannot do, however, is serve to prevent candidates and individuals from coordinating all political efforts, including those that advocate for certain issues.
But that’s exactly the coordination theory that brought on the John Doe cases. In his original defense of the subpoenas, prosecutor Schmitz argued for an all-encompassing version of coordination that could convert all types of advocacy to campaign contributions. This argument attempts to use disclosure as justification, but fails: although campaign disclosure regulations can reach all forms of political speech because most courts view it as not unduly burdensome, coordination must have a more limited reach because its results are, once again, outright limits on what individuals and organizations may say. Reformers counter that this is limited to speech made in “coordination,” and easily remedied by avoiding discussing policy and engagement with candidates and campaigns. But rather than counter the argument this only raises a whole host of new ones. Most importantly, what good is democracy when individuals and groups—particularly the ones who care enough to engage—cannot meet and coordinate with candidates in any way whatsoever without triggering contribution limits (which are very low when compared to the costs of taking out advertisements) or joining the campaign?
In 2003, in McConnell v. Federal Election Commission the U.S. Supreme Court upheld a facial challenge against a Congressional edict in the McCain-Feingold law for the FEC to formulate a broad coordination regulation. McConnell was the same decision that upheld speech bans overturned in Citizens United just a few years later, but nevertheless reformers utilize the coordination portion of McConnell rather than cases that have delved into the reality of when such regulations are applied. There are few such cases, but nearly all of them recognize (John Doe being only the latest) that coordination restrictions cannot be crafted or enforced carelessly or with anything close to the breadth of disclosure regulations. Indeed, before the McConnell case reached the Supreme Court, in a partial dissent at the D.C. District Court Judge Karen Henderson summarized her argument that the coordination portion of McCain-Feingold was facially invalid:
[I]n the absence of a clear and narrow definition of coordination, an organization’s ideological opponents need only assert that it is engaged in such activity to initiate a crippling litigation process that could prevent the organization from participating, legally, in protected lobbying or speech activities.
Seeing what a vague and broad coordination theory wrought in Wisconsin, a “long, unfortunate chapter in Wisconsin’s history”, one must respect Judge Henderson’s prescience.
The numerous side issues in the Wisconsin John Doe case—from arguments that certain judges were required to recuse themselves to factual disputes over how the quashed subpoenas were executed—continue to draw extensive, prolonged ire. With this comes very little to question the court’s July ruling on coordination, the lynchpin of the entire case. Last week’s dissent (beginning on paragraph 42 of the slip opinion) attempts to yet again salvage the prosecution, with everything from citations of recent disclosure cases (which, I hope I’ve made clear, are distinct from coordination cases) to an effort to ignore the prosecutor Schmitz’s actual arguments defending the subpoenas. These sideshows mean little to the constitutional concerns in the case.
Politically or personally, for some the John Doe case may never really end. Such is an effect—too often, an objective—of campaign finance prosecutions. But for campaign finance law, John Doe is an important affirmation of free speech against vague and overbroad regulations. This is not to say reformers won’t keep trying, but that in John Doe’s wake courts are more likely to quickly recognize investigations and prosecutions that step outside of coordination’s narrow confines.