Investigations as a Substitute for Suppression

May 9, 2014   •  By Brad Smith   •  
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Earlier this week, a federal judge ordered a halt to the John Doe investigation in Wisconsin that led to a series of high-profile pre-dawn raids on Wisconsin activists’ homes and businesses by law enforcement authorities.

This is an extremely important ruling. Under the theory advanced by the state, a great many of the individuals and the organizations with which many in the election law community are affiliated, including many “reform” organizations, could be subjected to the same type of investigations that were underway in Wisconsin. People in politics know each other and work together on projects, including on issues that can and do affect campaigns for office. The decision does not dramatically alter federal law, but it makes clear that sweeping allegations of “coordination,” and ensuing investigations cannot be used as a substitute for the outright suppression of speech.

Coordination allegations are easily made. We know, for example, that Craig Holman of Public Citizen is up on the Hill often, and we know some of the members with whom he speaks; we know of Campaign Legal Center’s Trevor Potter’s tight relationship with certain members of the Keating 5; we know that Democracy 21 president Fred Wertheimer and AEI’s Norm Ornstein work closely with various members. We know that the groups with which they are affiliated trumpet issues of importance to these members, often favorably quote these members, sometimes give them awards at big dinners in New York City that raise hundreds of thousands for the Brennan Center, which can put those funds back into promoting these same issues and the candidates affiliated with them. A knows B who knows C who knows D, and they are all talking about X. Voila! Coordination! If, as most in the pro-regulation camp argue, there need be no election advocacy to bring an allegedly coordinated communication within the regulatory purview of the law, than the routine communications by all these groups could easily be deemed “coordinated.” Fortunately, there has generally been some self-restraint in pushing coordination allegations, perhaps because all involved realize that under the expansive theories of “coordination” some advocate, a huge swath of routine and highly valuable political activity would suddenly be illegal.

But allegations are made at times, and once made, coordination investigations are among the most intrusive the government can undertake. By definition, they involve pawing through organizational records, learning who meets with whom, what they talk about, how officeholders and advocacy groups coordinate messages and work to pass legislation. They involve numerous depositions and demands for countless documents. Conducting these investigations under criminal law – and in secret, no less – merely makes the problem greater. Jim Bopp, Heidi Abegg, and others have written about this at length in numerous law review pieces. Steve Hoersting and I addressed the problem in an Election Law Journal article, “A Toothless Anaconda,” and also in my Statement of Reasons in FEC MUR 4626, available here. As I note in the outset to that statement of reasoning:

“Despite the fact that the Commission has now found no violations in this case, I strongly suspect that the original complainant, the Democratic National Committee, considers its complaint to have been a success.  The complaint undoubtedly forced their political opponents to spend hundreds of thousands, if not millions of dollars in legal fees, and to devote countless hours of staff, candidate, and executive time to responding to discovery and handling legal matters.  Despite our finding that their activities were not coordinated and so did not violate the Act, I strongly suspect that the huge costs imposed by the investigation will discourage similar participation by these and other groups in the future.”

There are very few federal court decisions on coordination, but they have generally taken a similar hard line against the government. See FEC v. Christian Coalition, 52 F. Supp.2d 45 (D.D.C. 1999). So in that sense, the Wisconsin decision does not make new law. But it does emphasize good law in an area that has been largely unsupervised by the courts.

A potentially unique element is that Wisconsin substantive law requires “express advocacy” even for “coordinated communications.” This clearly shows the wisdom of having some type of “content standard” for determining if something is “coordinated,” as a threshold barrier to exactly this type of intrusive investigation. As I point in MUR 4626 quoted above, absent a “content” threshold, coordination allegations are very easy to make, and the process is itself the punishment, as we saw both in MUR 4626 and in this very case in Wisconsin. The key paragraph to understanding yesterday’s ruling is the paragraph beginning at the bottom of page 19, and footnote 7, which immediately precedes this paragraph. I’ll quote it here in it’s entirety:


Moreover, if Wisconsin could regulate issue advocacy — coordinated or otherwise — it would open the door to a trial on every ad ―on the theory that the speaker actually intended to affect an election, no matter how compelling the indications that the ad concerned a pending legislative or policy issue. No reasonable speaker would choose to run an ad . . . if its only defense to a criminal prosecution would be that its motives were pure. WRTL at 468.

TEXT: “Defendants‘ attempt to construe the term ―political purposes to reach issue advocacy would mean transforming issue advocacy into express advocacy by interpretative legerdemain and not by any analysis as to why it would rise to the level of quid pro quo corruption. As the defendants argue, the Club would become a ―subcommittee‖ of a campaign committee simply because it coordinated therewith. Wis. Stat. § 11.10(4). If correct, this means that any individual or group engaging in any kind of coordination with a candidate or campaign would risk forfeiting their right  to engage in political speech. The legislative tail would wag the constitutional dog.8


For example, if the Boy Scouts coordinated a charitable fundraiser with a candidate for office, the Boy Scouts would become a campaign subcommittee subject to the requirements and limitations of Wisconsin campaign-finance laws, exposing them to civil and criminal penalties for touting the candidate‘s support. See, e.g, Clifton v. Fed. Election Comm’n, 114 F.3d 1309, 1314 (1st Cir. 1997) (―it is beyond reasonable belief that, to prevent corruption or illicit coordination, the government could prohibit voluntary discussions between citizens and their legislators and candidates on public issues‖). Similarly, if a 501(c)(4) organization like the Club coordinated a speech or fundraising dinner with a Wisconsin political candidate, all of its subsequent contributions and expenditures would be attributable to that candidate‘s committee and subject to the limitations of Wisconsin law. This would preclude the organization from making any independent expenditures after initially engaging in coordinated issue advocacy. Wis. Stat.§§ 11.05(6), 11.16(1)(a). It would also bar the organization from accepting corporate contributions which could then, in turn, be used for independent expenditures. § 11.38.”

So this is a very important decision – a ruling the other way would have really led to some nasty politics, because,  as I’ve noted, it is very easy to file these complaints, if there is no content standard, and believe me, we would have started to see them being filed all over. I have a long list of organizations and their activities and contacts that would be ripe for coordination complaints under the type of theory advanced here by the State of Wisconsin.

Brad Smith

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