Thursday, February 05, 2015

Thus endeth the Doe?

We've recently read that a ruling by Judge Charles Clevert has "struck down" portions of Wisconsin's campaign finance law and may have effectively killed - if it is still alive - the John Doe investigation into "coordination" between Scott Walker's campaign and certain conservative groups. Both of these things are true, but they actually happened last May.

What Judge Clevert did last week was to enter a judgment formalizing - and reducing to legally prescriptive language (i.e., "you shall not do X") - a ruling of the Seventh Circuit Court of Appeals last spring in a  case called Wisconsin Right to Life v. Barland. Most significantly, the Seventh Court held that the very scope of Wisconsin's campaign finance law was unconstitutional. As I wrote at the time, this ruling, at the very least, put the Doe inquiry on life support. Judge Clevert's recent order makes clear why this is the case.

Virtually all of Wisconsin's campaign finance laws are limited to activities undertaken for a "political purpose." The law itself defines this broadly, saying that it is anything done "for the purpose of influencing an election." While it has only sometimes admitted it, the Government Accountability Board has known for a long time that this definition is unconstitutionally vague and overbroad. The Supreme Court has made clear that not everything that might be said to have "the purpose" of influencing an election can be regulated. So the Barland court held that the state must limit its definition of "political purpose" to activities that constitute "express advocacy" - explicit calls to elect or defeat a candidate - or its "functional equivalent."

This is a pretty narrow definition. The Supreme Court has made clear, for example, that a communication (think of a campaign ad) can only be considered to be express advocacy (or its functional equivalent) if it is susceptible of no reasonable interpretation other than as a call to elect or defeat a candidate. In making this determination, it doesn't matter what the speaker "really" intended and very little consideration of the context is permitted. In other words, if it is at all possible to call something an issue ad, it's an issue ad. While the Court hasn't directly said so, it is hard to see how any ad that does not use "magic words" such as "vote for" or "defeat" can ever be considered express advocacy.

The implications for the Doe are obvious and Judge Clevert's order drives that home. It prohibits the defendants (which include the GAB and Milwaukee County District Attorney John Chisholm") from any criminal investigation that is inconsistent with this new and limited definition of "political purpose." If, as seems to be the case, those who were alleged to have coordinated with the Walker campaign did nothing but issue advocacy, then their activities could not fall within the constitutionally permissible definition of "political purposes." There would be literally nothing that can be lawfully investigated.

Some lawyers have argued that Barland's limitation of "political purpose" should not apply to coordinated communications. i.e., communications that have somehow been somehow been discussed with a candidate or someone who is deemed to be an agent of or closely related to a candidate. For reasons that I have explained elsewhere (including in briefs filed in related cases), I believe that this is wrong. People who advocate on issues frequently speak to elected officials and candidates. For example, liberal organizations who want to launch a campaign against right to work legislation will almost certainly discuss strategy and talking points with like-minded legislators - many of whom may be candidates for public office. Indeed, they have a constitutional right to do so. An overly expansive definition of "coordination" - one that does not clearly  and narrowly define the conduct that constitutes coordination and the content of communications that might be considered coordination - does not give adequate protection to speakers.

John Chisholm and the GAB should never have started this Doe investigation. It was an unseemly and unprecedented assault on freedom of expression. Sound lawyerly judgment should have caused them to end it long ago. Now, it seems, they may have no choice.

Cross posted at Purple Wisconsin.


Anonymous said...

You and an unanimous 7th Circuit Panel in the O'Keefe case, and specifically Judge Easterbrook, apparently disagree on what Barland II means -- which Judge Clevert's judgment simply finalizes. I am going to conclude that the 7th Circuit has far more "sound lawyerly judgment" than you. But keep toeing the party line, Rick, rather than exercising your lawyerly judgment.

Rick Esenberg said...

Actually, that wasn't the issue in O'Keefe, but thanks for commenting.

Anonymous said...

Actually, it was. The Seventh Circuit in O'Keefe wrote that "no opinion by the Supreme Court, or by any court of appeals" has held that the First Amendment forbids regulation of coordinated "issue advocacy." I think we can assume that the Seventh Circuit didn't forget to include itself and its prior decision in Barland II regarding WI law. I think you are being overly narrow as to what you believe was at issue in that case.

Rick Esenberg said...

I disagree. My point is not that the First Amendment prohibits regulation of coordinated issue advocacy - although it might - but that, after Barland II (actually, I would say at least after WRTL II), Wisconsin does not have a constitutionally adequate definition of the content of communications that might be considered "coordinated." (I also believe that there is not a constitutionally adequate definition of the conduct that constitutes coordination but Barland II is only indirectly related to that.)

Anonymous said...

That's a fair argument, but, notably, its based on "after Barland II." I disagree with your interpretation and don't think it's supported by Judge Clevert's judgment. However, your blog takes the legal issue a step further. It condemns the prosecutors for "unsound lawyerly judgment" sprinkled with other rhetoric questioning their ethics for starting the Doe, but based on a "after Barland II" argument. That's not fair.

Rick Esenberg said...

I am not questioning anyone's ethics or speculating as to motivation. I am suggesting that it was clear that there were problems with the structure of chapter 11 that might have caused a prudent lawyer to conclude that threatening to throw people in jail was a bad idea. I am suggesting that using drug war tactics against one side of the political spectrum ought to have been seen as problematic.

Rick Esenberg said...

In addition, my argument is not just based on Barland II. The GAB was conceding that the gateway definition in chapter 11 was unconstitutional and, even if it hadn't, WRTL II pretty clearly suggested that it was.