Federal Judge orders Wisconsin not to enforce “anti-coordination” campaign laws

Federal Judge orders Wisconsin not to enforce “anti-coordination” campaign laws

In a somewhat stunning development, the same federal judge who issued an injunction against the infamous “John Doe” investigation, only later to be overturned by the appeals court, has just ordered the State of Wisconsin, in another lawsuit, to stop enforcing anti-coordination campaign finance laws.

The full decision will be embedded soon.  (Update- embedded now at bottom of post)

That other lawsuit is one we previously covered, brought by Citizens for Responsible Government Advocates, WI conservative group seeks court protection from “John Doe” prosecutors:

The heart of the suit is that CRG wants to engage in conservative issue advocacy in coordination with others, including state political candidates, but under the interpretations put forth by the Government Accountability Board and Chisholm, such coordination would be illegal.

CRG seeks a court declaration that GAB and Chisholm are wrong, and that CRG’s proposed conduct would be lawful and would not subject it to criminal investigation by Chisholm, as has happened to other conservative groups.

For protection, CRG seeks an injunction against enforcement of the statutes as interpreted by Chisholm and others.

The Wisconsin State Journal reports, Federal judge orders state to stop enforcing anti-‘coordination’ law:

A federal judge Tuesday gave the green light to campaigns and purportedly independent groups to coordinate some political activity — legalizing, at least temporarily, the type of activity at the heart of the now-stalled John Doe investigation.

U.S. District Judge Rudolph Randa ordered Wisconsin officials to stop enforcing the state law that bans such coordination. A national campaign finance expert said he expects that order likely will be appealed — and overturned.

Randa’s order came in a lawsuit filed in the Milwaukee-based court by Citizens for Responsible Government Advocates against the state Government Accountability Board and Milwaukee County District Attorney John Chisholm. Randa ruled that the state cannot regulate groups that coordinate with candidates, so long as the groups engage in so-called issue advocacy.

Issue advocacy is usually a thinly veiled effort to boost or criticize a candidate without urging a vote for or against that candidate. Groups that engage in such efforts are not required to report their donors nor are they subject to spending limits.

This is a huge win for the John Doe targets who sued in the prior case, because it halts the issue advocacy investigations and guts the John Doe prosecutors’ legal theory.

It is not contrary to the 7th Circuit decision in the John Doe case, because that decision was focused on whether a federal court should intervene in an ongoing state investigation as to which a state court judge already had ruled that no further subpoenas could issue. That created issues as to federal court exercise of jurisdiction and whether such rulings would be merely advisory.

But in the CRGA case, the groups were suing preemptively for declaratory relief that the statutes and interpretations by prosecutors were unconstitutional.

Judge Randa cited the 7th Circuit opinion in the John Doe case in his decision issuing the Order in the CRGA case, issuing what amounts to a Temporary Restraining Order:

Days after that ruling [ruling by Judge Randa in the John Doe case], the Seventh Circuit issued a decision regarding Wisconsin’s campaign finance law that supports the Court’s analysis, explaining as follows: “As applied to political speakers other than candidates, their committees, and political parties, the statutory definition of ‘political purposes’ in [Wis. Stat. §] 11.01(16) and the regulatory definition of ‘political committee’ in GAB § 1.28(1)(a) are limited to express advocacy and its functional equivalent as those terms were explained in Buckley [v. Valeo, 424 U.S. 1 (1976)] and [F.E.C. v. Wis. Right to Life, Inc., 551 U.S. 449 (2007)].”Wis. Right to Life, Inc. v. Barland, 751 F.3d 804, 834 (7th Cir. 2014) (“Barland II”). Therefore, the Court concludes, at least for now, that CRG is likely to succeed on the merits in this action. See ACLU v. Alvarez, 679 F.3d 583, 589 (7th Cir. 2012) (explaining that in First Amendment cases, the “likelihood of success on the merits will often be the determining factor” because the “loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury”).

Here is the operative part of the Order (hard paragraph breaks added):

NOW, THEREFORE, BASED ON THE FOREGOING, IT IS HEREBY ORDERED THAT CRG’s request for injunctive relief is
GRANTED.

Defendants are prohibited from implementing, enforcing, or giving effect to the definition of “political purposes” found in Wisconsin Statutes § 11.01(16) against communications expenditures, except as applied to expenditures for communications that expressly advocate the election or defeat of a clearly identified candidate or are the functional equivalent of express advocacy as defined in FEC v. Wisconsin Right to Life, Inc., 551 U.S. 449 (2007) (“WRTL”).

Defendants are prohibited from implementing, enforcing, or giving effect to the restrictions on “coordination” in Wisconsin Statutes § 11.10(4) and § 11.06(4)(d) against communications expenditures, except as applied to expenditures for communications that expressly advocate the election or defeat of a clearly identified candidate or are the functional equivalent of express advocacy as defined in WRTL. Defendants are prohibited from implementing, enforcing, or giving effect to any other provisions of Wisconsin Statutes Chapter 11 that are triggered by Sections 11.01(16), 11.10(4), or 11.06(4)(d) against communications expenditures, except as to expenditures for communications that expressly advocate the election or defeat of a clearly identified candidate or are the functional equivalent of express advocacy as defined in WRTL.

WI Fed Ct Order Re Issue Advocacy in Re CRGA

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