The Wisconsin Supreme Court was badly divided on the “coordination” question that it resolved in favor ending an ongoing criminal investigation.  The majority and dissents expressed their disagreement in harsh terms, and there was a similar outbreak of ill-will or impatience among experts and seasoned observers trading views on the election law list serv.  Dividing the camps for the sake of convenience into progressives and conservatives: the former were appalled by the case and the latter overjoyed, and neither could believe how the other was reacting.  The case was either a nightmare for desperately needed reform, or a vindication of the rule of law in a struggle with political persecution and police state tactics.

But are the issues being fairly brought out amid all this vitriol, and is it necessarily true that the opinions on the coordination issues in Wisconsin must always and inevitably fall out along ideological and party lines?

There should be common ground on one threshold point: as the Court in Buckley declared so long ago, the constitutional treatment of issue advocacy presents doctrinal challenges.   The issue is not whether a group’s issue advocacy is entitled to a high level of protection in general; it is, but there is disagreement about how much.  Some would say, “none at all,” if a candidate is running the show and the speech is just hers, for all practical purposes under her control.

The arguments can go in various directions. Should there be doubt that the speech is truly issues speech, regulation turns on its content —the presence or absence of express advocacy or its functional equivalent.  If it is issues speech, then the argument shifts to whether it matters that a candidate requests, controls or shapes the speech through “coordination”, and if it does, how precisely the prohibited coordination is defined.  

The different possible paths of the analysis lead toward or away from the finding the speech is a contribution to the candidate. Over time each side to the debate has found that the answers to the question might not be simple or obvious.

Organized labor switched from years of support of campaign finance regulation to marked skepticism in part as a reaction to the coordination rules.  New restrictions on coordination were among the provisions of McCain-Feingold that prompted the AFL to join the attack on the statute.  It objected to a definition of coordination so broad that it could include “mere consultation”, or apply where a candidate makes public statements that her allies use to map out their advertising strategies, or erase all distinctions between political communications made within or outside campaign season.  Brief of AFL-CIO Appellants/Cross-Appellees at 36-37, McConnell v. Federal Election Commission, 540 U.S. 93 (No. 02-1755) (2010)

Other progressive organizations have argued against overbroad constructions of the kind of speech that would be considered election-influencing.  In 2004, when considering this question, the Federal Election Commission ran into strong opposition from an alliance of progressive organizations.   The agency put out for comment the proposition that, in defining a political committee, it could take into account speech that generally “promoted, attacked, supported, or opposed” a federal candidate – – the so-called PASO” test. The progressive coalition asserted, vigorously, a constitutional objection, saying the test was:

unauthorized by the statute, which for 20 plus years has been limited to communications that in express terms advocate the election or defeat of a clearly identified candidate.

 Letter to Mai T. Dinh, Acting General Counsel to the FEC, from the Alliance for Justice (on Behalf of 415 nonprofit organizations), Comments and Request to Testify Concerning Notice of Proposed Rulemaking On Political Committee Status (April 15, 2004) at 3. (emphasis added)

So in the past progressive organizations have complained on both counts — the content of speech subject to the coordination, and the breadth of any applicable coordination standard.  On the other side, conservatives have argued from time to time for more effective regulation of issue advocacy. Following the 1996 election, the degree to which President Clinton’s campaign organization coordinated with the national party in the development and funding of issue advertising infuriated the Republican Party. There were congressional hearings and calls for criminal prosecution.  In 2004, issue advertising directed against President Bush led to similar outcries from his allies and moves to address the problem through administrative enforcement or litigation.

It’s possible to dismiss the significance of Republican complaints as little more than the subordination of ideology to strategic imperatives. And, of course, the Republicans were frustrated that, as they saw it, the Democrats had gotten away with something.  But, on another level, the Republicans were complaining that if the law imposes contribution limits, those limits (as well as source restrictions) should be enforced–and that is what the coordination issue, in the end, is really all about.

So it is a mistake to assume that there has always been a wholly partisan divide on this question, or that, depending on how it was presented, there would be one today.  The point is: how to treat candidate involvement in allies’ issue advocacy is a hard question.

Now the Wisconsin court made a critical choice to exempt all issue advertising from the coordination rules and to render irrelevant how much coordination there is. It should not be difficult to see that this raises questions.  A hypothetical: a candidate establishes, or works with others in establishing, an organization only for the purpose of running issue ads helpful to his campaign.  We are not speaking here of an organization set up independently by allies—but instead a organization that was meant function much like a subsidiary.  Does the character of the speech–that it is issue advocacy—rule out the legal conclusion that the candidate is receiving a contribution to her campaign?  Or consider a similar case, and a different kind of speech or activity without an express election-influencing content, where a candidate sets up with others a charity that targets giving to constituencies or locations selected for their political value to the campaign?

How the issue is viewed in the Wisconsin case has been heavily colored by claims about the way to criminal prosecution was conducted – – with predawn raid, indiscriminate collection of materials etc.  The majority has validated this version of events.  In the last day, on the election law listserv, it is clear that any number of progressives are still holding out on this issue, unconvinced that it all happened in quite this way.

This shows how a polarized debate has resulted in energy wasted in debating a politically charged case when there is a serious underlying question worthy of discussion. . The campaign finance laws are subject to criminal enforcement. If there is evidence of criminal violations, should the investigation that ensues be conducted any differently because of the nature of the offense? The Wisconsin case, because it is about issue advertising, disturbs critics of the prosecution who see it as an example of a criminal inquiry into speech.

In this respect, the Abrahamson dissent in the Wisconsin case tends to lend support to legitimate concerns about the criminal enforceability of these statues– in particular, provisions governing (potentially) issue advocacy.  State of Wisconsin ex rel. Two Unnamed Petitioners v. Peterson, 2015 WL 4376442 (Abrahamson, J., dissenting in part and concurring in part)(July 16, 2015). The judge makes her case in workmanlike fashion that the statute reaches coordinated issue advocacy.  But she also relies on the “spirit of the law”, Id. at *71, acknowledges that, without extensive judicial construction and gloss, the statute in question “is not easy to read or understand”, Id. at *78, and declares that “the fundamental point to remember in deciding campaign finance law cases is that context is key.” Id. at *88.  This is not the most reassuring architecture for a doctrine of campaign finance regulation that includes criminal liability.

But is not clear that the critics of views like Abrahamson’s would object to aggressive criminal enforcement of other provisions of the statute.  Take one of the easier cases: that of a candidate violating the personal use restrictions by diverting massive sums of campaign money to the purchase of luxury goods or family investments.  If prosecutors feared that vital evidence would be destroyed, would a raid in that case seem all that abusive or inappropriate?  Maybe it is worth considering whether all of the provisions of the campaign finance laws must be criminally enforceable.  Perhaps exclusive civil enforcement with high penalties would make more sense for certain provisions of the Act, and not for all.

In fact there are a number of ways to think about the issues in this case – – about issues advocacy, coordination and criminal enforcement – – but the Wisconsin case and much of the commentary around it seems destined to contribute very little but hard feelings to the discussion of these difficult questions in contemporary campaign finance.

Leave a Reply