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.
Randa had previously ruled in a challenge to the John Doe investigation that groups can coordinate with candidates so long as they don’t expressly advocate for or against a specific candidate, and he ordered a halt to the probe. That investigation centers on the campaign of Gov. Scott Walker and alleged coordination with more than two dozen Republican and conservative groups — including Wisconsin Club for Growth, which brought the lawsuit — during the 2011 and 2012 recall elections.
That decision was overturned by a three-judge panel of the 7th U.S. Circuit Court of Appeals, which found, among other things, that the right to coordinate activities between campaigns and purportedly independent groups was not “clearly established,” even if the groups are engaging only in issue advocacy. The panel also ruled that the investigation was a state matter and ordered Randa to dismiss that case.
Meanwhile, the same group of lawyers that lost at the 7th Circuit brought suit on behalf of Citizens for Responsible Government Advocates, arguing that the Milwaukee-based group had the right to coordinate issue advocacy with three candidates who favor private property rights and fiscal conservatism. They are Kim Simac, running for re-election to the Vilas County Board; Carl Pettis, seeking re-election to the Waukesha County Board; and Republican Jason “Red” Arnold, who is trying to unseat Senate Minority Leader Chris Larson, D-Milwaukee, in the 7th Senate District.
Citing previous U.S. Supreme Court decisions and his own decision in the John Doe case, Randa wrote Tuesday that the state only has the right to regulate speech that could lead to cash-for-favors corruption.
“This Court ... concluded that a candidate’s coordination with and approval of issue advocacy speech, along with the fact that the speech may benefit his or her campaign because the position taken on the issues coincides with his or her own, does not rise to the level of ‘favors for cash,’ or a ‘direct exchange of an official act for money.’ ”
But Larry Noble of the Campaign Legal Center said Randa’s order likely will be appealed because it contradicts U.S. Supreme Court decisions about the legality of such coordination.
“He refuses to accept what he was told — that the law is not as he wishes it were,” said Noble, former general counsel for the Federal Election Commission. “He keeps trying to limit the application of the law in a way that has never been required by the Supreme Court. The court has never said it is unconstitutional ... when you’re dealing with coordinated activity.”
Added Noble: “I assume this will go to the 7th Circuit, and the 7th Circuit will reverse it.”
Republican Attorney General J.B. Van Hollen declined to represent the accountability board in the lawsuit, citing the agency’s “tenuous” legal theory that such coordination is illegal. Walker’s office hired outside counsel to defend the agency and Chisholm, and that attorney notified Randa Tuesday that he would be representing the defendants.
In a letter filed with the court Tuesday, Milwaukee attorney Daniel Kelly asked for additional time to respond to the lawsuit on behalf of the accountability board and Chisholm, saying he had been hired just the day before.
Kelly asked for a one-week extension to “draft a brief worthy of the important questions presented by the plaintiff’s motion.” Walker’s chief legal counsel, Brian Hagedorn, also had asked Randa for additional time to respond.
But Randa wrote that the preliminary injunction was needed immediately because of the looming Nov. 4 election.
“The general election is only three weeks away,” Randa wrote. “Any further delay threatens to negate the effectiveness of CRG’s requested relief.”
Reid Magney, spokesman for the GAB, said board director Kevin Kennedy planned to confer with the board’s legal counsel to discuss options.