I have a piece up on Right Wisconsin discussing last week's decision in the federal case challenging the John Doe investigation. The decision does not "restart" the investigation (which had already been effectively halted by the state courts) and does not reach the merits of the legal theories pursued by the prosecutors. Rather, it turns entirely on the perceived need for the federal courts to avoid interfering with state court proceedings. The state courts had already halted the Doe. This was important to the Seventh Circuit's conclusion that there was no need to intervene and that the matter should proceed before the state supreme court.
The closest that the Seventh Circuit got to the merits was in connection with "qualified immunity." The idea is that, even if public officials such as the prosecutors here, have acted unconstitutionally, they are immune from damages unless the unconstitutionality of their actions was "clearly established" at the time they were taken. (They can still be ordered to stop what they're doing.)
As I have written before, there is no doubt that "coordination" is part of campaign finance law. What is heavily disputed is what "coordination" is. As I have written in the past, defining coordination requires defining both its "conduct" (what interactions between a candidate and independent speaker constitute coordination) and its "content" (what type of communications, if coordinated, should be treated as a campaign "contribution").
The issue of what "conduct" might constitute coordination was not before the court in any meaningful way. As I have noted in the past, the prosecutors' view of what may constitute coordinating conduct in this case is quite troubling. But, if that ever becomes an issue, it will be on another day.
The Seventh Circuit did address whether it was clearly established that the "content" of the communications that were potentially coordinated - consisting of only issue advocacy - could never be treated as regulated contributions. The court acknowledged that it may be that they cannot, but that question has not been - or at least was not - "clearly established." So, even if the prosecutors' theory is ultimately proven to be wrong, they cannot be held liable for damages. That is very important for them as individuals but it does not mean that they are doing the right thing or have not "overreached."
I don't take any position on the "clearly established" issue. The amicus brief that we filed said only that state law governing coordination was, in fact, unconstitutional. I think that it has been pretty clear since 2007 that Wisconsin's law on the content of communications that can be considered coordinated is unconstitutional. That view was greatly strengthened in May of this year, when the Seventh Circuit struck down the definition of expenditures that are regulated by state law. But it is true that no case has held it to be so. The important thing to note is that the court did not reach the merits of the constitutional issue itself.
Indeed, the court invoked the doctrine of "constitutional avoidance" - the idea that courts should avoid constitutional issues if they can. While the merits of that doctrine in cases like this is debatable, it's a fairly common judicial argument. Here, the Seventh Circuit pointed out that the judge supervising the Doe has already held that the conduct being investigated does not violate state law. If that's so, it said, there may be no reason to ever decide whether the prosecutors' theory is unconstitutional.
Of course, if you believe that the law governing coordination is uncertain - and the Seventh Circuit panel did - it raises an important policy issue regarding the Doe. How do you possibly justify a criminal investigation based on the mess that is Wisconsin's campaign finance law?
Cross posted at Purple Wisconsin