Yesterday, the 7th Circuit Court of Appeals denied a request by two targets of the Wisconsin John Doe investigation to rehear a decision by a three-judge panel to vacate an injunction issued by the District Court preventing the state investigation from continuing. (Order at bottom of post.)
The substantive issue underlying the case is whether the Wisconsin campaign regulations violated the First Amendment, specifically laws that purportedly bar “issue advocacy” coordination between campaigns and outside groups.
In the John Doe investigation, the Milwaukee County prosecutor — who allegedly has a family political bias — targeted dozens of conservative Wisconsin activists for sweeping subpoenas. Two of the targets — Eric O’Keefe and the Wisconsin Club for Growth — filed suit in federal court to halt the investigation, and for money damages. The District Court granted the injunction and allowed the case to move forward.
The 7th Circuit, however, reversed the District Court. That original 7th Circuit decision was based, primarily, on the issue of whether a federal court in this circumstance should interfere in a state court investigation. The 7th Circuit panel ruled that the federal court should abstain.
I reached out to one of the lawyers for the John Doe targets, Andrew Grossman, as to whether Supreme Court review via a Petition for Certiorari would be sought, and he responded as follows:
“We will be seeking Supreme Court review and have every expectation that the Seventh Circuit’s decision will be reversed.”
While the issue of abstention presumably will be the focus of the Petition, if the Supreme Court takes the case it will bring up for review the entire scheme of campaign regulation, and the Supreme Court will have an opportunity to again rule on that contentious issue. Campaign regulation is a necessary part of the abstention issue because the 7th Circuit panel ruled that the lack of a definitive Supreme Court ruling on the issue presented was one of the factors in considering abstention:
Plaintiffs’ claim to constitutional protection for raising funds to engage in issue advocacy coordinated with a politician’s campaign committee has not been established “beyond debate.” To the contrary, there is a lively debate among judges and academic analysts. The Supreme Court regularly decides campaign-‐‑finance issues by closely divided votes. No opinion issued by the Supreme Court, or by any court of appeals, establishes (“clearly” or otherwise) that the FirstAmendment forbids regulation of coordination between campaign committees and issue-‐‑advocacy groups—let alone that the First Amendment forbids even an inquiry into that topic. The district court broke new ground. Its views may be vindicated, but until that day public officials enjoy the benefit of qualified immunity from liability in damages. This makes it unnecessary for us to consider whether any defendant also enjoys the benefit of absolute prosecutorial immunity, which depends on the capacities in which they may have acted at different times…..
The John Doe targets have 90 days from yesterday to file the Cert. Petition.
If the Supreme Court takes the case, this could be another blockbuster ruling, akin to Citizens United, that reshapes the landscape for political suppression of free speech in the form of campaign regulation.
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