CRG Advocates v Chisholm Et Al - Complaint With Exhibits

8/20/2019 CRG Advocates v Chisholm Et Al - Complaint With Exhibits

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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF WISCONSIN

MILWAUKEE DIVISION

The plaintiff, Citizens for Responsible Government Advocates, Inc. (“CRG”

follows:

NATURE OF THE ACTION

1.

This is an action seeking declaratory and injunctive relief from the en

Wisconsin law in violation of CRG’s federal rights. According to the Wisconsin

Accountability Board (“GAB”), Wisconsin law regulates as “contributions” co

di di d i h li i i did f ffi h h

CITIZENS FOR RESPONSIBLE

GOVERNMENT ADVOCATES, INC.

Plaintiff,

v.

THOMAS BARLAND, in his official

capacity;

HAROLD FROEHLICH, in his official

capacity;

JOHN FRANKE, in his official capacity;

ELSA LAMELAS, in her official capacity;

GERALD NICHOL, in his official capacity;

TIMOTHY VOCKE, in his official capacity;KEVIN J. KENNEDY, in his official

capacity; and

JOHN CHISHOLM, in his official capacity;

Defendants.

Civil Case No. 2:14-cv-1

COMPLAINT


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First Amendment precedents of federal and Wisconsin courts, including a Sev

decision issued four months ago. See Wis. Right to Life, Inc. v. Barland , 751 F.3d

Cir. 2014) ( Barland II ). CRG therefore seeks a declaration that Wisconsin’s cam

law, as interpreted by GAB, violates the First and Fourteenth Amendments

Constitution and seeks preliminary and permanent injunctions forbidding Def

enforcing the relevant provisions of that law.

JURISDICTION AND VENUE

2. This action arises under the First and Fourteenth Amendments t

States Constitution; the Civil Rights Act of 1871, 42 U.S.C. § 1983; and the doctrin

in Ex Parte Young, 209 U.S. 123 (1908). Jurisdiction of the Court is conferred

§ 1331 because CRG’s claims arise under the United States Constitution.

3.

The United States District Court for the Eastern District of Wisconsi

federal venue for this action under 28 U.S.C. § 1391(b)(1) because all the defendant

residents of Wisconsin and Defendant John Chisholm resides in the Eastern District

Wisconsin.

PARTIES

4.

CRG is a social-welfare organization recognized as a non-profit entit

U.S.C. § 501(c)(4). Its offices are located in Milwaukee County, Wisconsin. CRG w

in 2006 to advocate for fiscally responsible policy and legislation on a local and stat

and to empower citizens to become engaged in managing government. Over the yea


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5. Seven of the defendants—Thomas Barland, Harold Froehlich, John F

Lamelas, Timothy Vocke, Gerald Nichol, and Kevin J. Kennedy—are board membe

of GAB, which has authority over administration of Chapter 11 of the Wisconsin St

is at issue in this action. These defendants are named in their official capacity.

6. Defendant John Chisholm is the district attorney of Milwaukee Coun

independent authority to enforce Chapter 11 over citizens of Milwaukee County, inc

He is named in his official capacity.

STATEMENT OF FACTS

A. CRG’s Activities

7.

CRG advocates in favor of fiscal conservatism and private property r

communications with its supporters and the public consist of speech on issues of pu

in Wisconsin. These communications are “issue advocacy”: they convey CRG’s pos

issues without expressly advocating the election or defeat of any candidate or engag

functional equivalent of such express advocacy. CRG has regularly engaged in this

advocacy since 2006 and intends to continue to do so into the future.

8. CRG’s issue advocacy takes several forms. CRG creates broadcast ad

on the issues. CRG also hosts educational events, such as a recent rally in Waukesha

we did build it!” featuring speakers from various backgrounds who gave presentatio

economic policy. CRG has hosted political candidates and officeholders at its educa

including Wisconsin Governor Scott Walker, Lieutenant Governor Rebecca Kleefis


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9. CRG’s activities are funded through contributions by supporters of it

CRG accepts corporate contributions. CRG relies heavily on its supporters to fund i

and the extent to which it can engage in its activities depends directly on its support

willingness to contribute funds to it. If CRG’s fundraising among its supporters wer

its ability to function effectively—including its ability to engage in speech on the is

be severely compromised.

10. CRG does not make direct or in-kind contributions to candidates for

does not coordinate any political expenditures with officeholders or candidates for o

11. CRG is not a “committee” as the term is defined in Wisconsin Statut

and is not subject to the filing and disclosure requirements of Wisconsin Statutes §

B. CRG’s Intended Collaboration with Citizen-Candidates

12.

This suit involves CRG’s intended collaboration with citizens who h

to participate directly in Wisconsin politics to advance fiscal responsibility and gove

accountability. Those citizens include three current candidates for office in Wiscons

Simac, Carl Pettis, and Jason Arnold.

13. Kim Simac resides in Vilas County, where she is a member of the Bo

Supervisors, an elected position. Simac is up for reelection in 2014 and, in 2011, wa

Republican challenger against Democratic Wisconsin state Senator Jim Holperin. A

fiscal conservative, Simac became involved in politics in 2009 to confront the probl

Wisconsin and the nation.


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advocate for conservative principles in Wisconsin, including limited government an

responsibility, for decades.

15. Jason “Red” Arnold is a resident of Milwaukee County and a 2014 c

the Wisconsin Senate. An Information Technology consultant, Arnold became invo

politics to promote fiscally conservative policies.

16.

CRG has long advocated in favor of participatory democracy, encour

citizens to hold government accountable, particularly on fiscal issues, and to take ba

of power from the political class and professional politicians. CRG believes that gov

works better, and is more accountable to the people, when ordinary citizens particip

government, such as by running for office, forcing elected officials to justify their p

and injecting common sense into political debates.

17.

To that end, CRG intends to create and publish a website, “Take Cha

Wisconsin,” featuring the stories of citizens who have served in office or are runnin

to promote common-sense conservative fiscal policies. Take Charge Wisconsin will

conservative fiscal policies such as efficient government and waste reduction, will h

examples of government inefficiencies and waste and identify the politicians respon

them, and will educate citizens on how to promote conservative fiscal policies throu

participation in politics.

18. Collaboration with Simac, Pettis, and Arnold, as well as other fiscall

conservative elected officials and candidates, is central to the creation and ultimatel


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of the debate and bring these issues to the fore. These materials, including videos, w

specific examples of waste and inefficiency and name names—that is, they will call

politicians who bear responsibility for wasteful government policies. They will also

concerned citizens how they can be part of the solution. The overall purposes of the

are to (1) convince citizens that there is a serious problem; (2) encourage citizens to

politicians who are responsible for aspects of that problem to express their concerns

(3) demonstrate through the examples of Simac, Pettis, and Arnold that conscientiou

can make a difference in Wisconsin governance; and (4) educate citizens on further

they can take. CRG is aware of no better way to accomplish these things other than

collaborating with citizen-candidates like Simac, Pettis, and Arnold who have direct

in these matters and can serve as examples for other concerned citizens.

19.

CRG may also undertake broadcast advertising, in collaboration with

Pettis, and Arnold, to promote the Take Charge Wisconsin website. These advertise

identify examples of government waste and inefficiencies and the politicians who b

responsibility for them and would encourage citizens to take action by contacting th

politicians and visiting the Take Charge Wisconsin website to learn how they can b

engaged. CRG anticipates that these advertisements may be narrated by, or otherwis

Simac, Pettis, and Arnold.

20. CRG hopes that Take Charge Wisconsin will have an immediate imp

Wisconsin policy debates, including in the current election cycle, by educating citiz


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into the future. It intends to collaborate with additional fiscally conservative elected

candidates in the future to create more content for the website and increase its relev

effectiveness.

21. CRG has registered the Internet domain name takechargewisconsin.o

intends to host the Take Charge Wisconsin website at that address. CRG has already

planning for some of the website’s content. CRG has not been able to begin creating

however, due to its fear that its intended collaboration with Simac, Pettis, and Arnol

subject it to criminal sanctions under Wisconsin law. CRG believes, based on its pri

experience maintaining other websites, including crgnetwork.com, that it could prep

content for Take Charge Wisconsin and launch the website in approximately one we

broadcast advertising to follow immediately thereafter.

C. Wisconsin’s Campaign-Finance Framework

22. Chapter 11 of Wisconsin Statutes sets forth the state’s campaign-fina

which includes a system of contribution limitations, bans on certain contributions, a

requirements. Campaign committees are prohibited from receiving contributions in

statutory limitations and from receiving contributions from corporations. Wis. Stat.

11.26, 11.38. Both campaign committees and independent political committees are

registration and reporting requirements for contributions received. E.g., Wis. Stat. §

Organizations that are not campaign committees or political committees are general

to regulation under Chapter 11.


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For example, Wisconsin Statutes § 11.10(4) provides that “[a]ny committee which i

or acts with the cooperation of or upon consultation with a candidate or agent or aut

committee of a candidate, or which acts in concert with or at the request or suggesti

candidate or agent or authorized committee of a candidate is deemed a subcommitte

candidate’s personal campaign committee.” Wisconsin Statutes § 11.06(4)(d) provid

“contribution, disbursement or obligation made or incurred to or for the benefit of a

reportable by the candidate or the candidate’s personal committee if it is made or in

the authorizations, direction or control of or otherwise by prearrangement with the c

the candidate’s agent.” GAB has taken the position that expenditures coordinated w

candidate constitute “contributions,” as defined in Wisconsin Statutes § 11.01(6), an

therefore subject to Chapter 11’s restrictions on contributions. Ex. A, El. Bd. 00-02

3/26/08). See also Wis. Stat. §§ 11.26 (contribution caps for contributions to candid

various state offices), 11.24 (banning contributions “other than from the funds or pr

belonging to the contributor”), 11.38 (banning contributions by corporations), 11.30

on anonymous contributions), 11.05 (reporting requirements for contributions), 11.3

(prohibition on anonymous advertisements), 11.06 (contents of reports filed under S

11.05), 11.12 (ban on contributions that are not reported), 11.14 (deposit account re

for contributions), 11.16 (requirements for campaigns in receiving contributions), 1

(limitations on contributions concerning a referendum), 11.27 (prohibition on false

as those failing to report contributions), 11.36 (prohibiting solicitation of contributio


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provisions). This approach is intended to prevent circumvention of contribution ban

treating “coordinated” spending as a contribution or campaign expenditure.1

24. All the key terms in these provisions—“committee,” “disbursement,”

“contribution,” and “obligation”—depend on the phrase “for political purposes” as t

defined in Wisconsin Statutes § 11.01(16). A “contribution” is a “gift, subscription,

advance, or deposit of money or anything of value…made for political purposes.” W

§ 11.01(6)(a)(1) (emphasis added). An “incurred obligation” is “every express

obligation…including every loan, guarantee of a loan or other obligation or paymen

goods, or for any services…incurred by a candidate, committee, individual or group

purposes.” Wis. Stat. § 11.01(11) (emphasis added). A “disbursement” is a “purcha

distribution, loan, advance, deposit, or gift of money or anything of value…[or a ‘co

promise, or agreement’ to do any of these things] made for political purposes.” Wis

§ 11.01(7)(a) (emphasis added).

25.

Chapter 11 defines “[a]cts which are for ‘political purposes’” to mean

for the purpose of influencing the election or nomination for election of any individ

local office, for the purpose of influencing the recall from or retention in office of an

holding a state or local office….” Wis. Stat. § 11.01(16)(a).

26. To avoid striking down the relevant provisions of Wisconsin’s camp

law as unconstitutionally vague and overbroad, the Seventh Circuit adopted a limiti

construction of the term “political purposes” to reach only “express advocacy and it


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administrative regulations, a communication is “express advocacy” if it uses langua

“vote for,” “support,” or similar language explicitly urging the viewer to cast a vote

against a specific candidate in an election. A communication is the “functional equi

express advocacy if it is susceptible of no reasonable interpretation other than as an

vote for or against a specific candidate. See FEC v. Wis. Right to Life, Inc., 551 U.S

469–70 (2007) (Roberts, J.) (WRTL). In contrast, communications that focus on poli

urge the public to take a stance on such issues are not express advocacy, even if they

political candidate and ask the public to contact the candidate regarding the issue. S

communications are known as “issue advocacy.” WRTL, 551 U.S. at 470.

27.

Only one reported decision has considered whether Wisconsin law’s

purposes” term includes issue advocacy that is coordinated with a political candidat

Wisconsin Coalition for Voter Participation, Inc. v. State Elections Board , 605 N.W

(1999) (WCVP), the Wisconsin Court of Appeals held, with respect to coordinated

communication expenditures, that “the term ‘political purposes’ is not restricted by

statutes or the code to acts of express advocacy.” According to the Wisconsin Court

Chapter 11 regulates issue advocacy if it is done with the subjective intent, or the ef

influencing an election. See id . at 684 & n.9, 685 & n.10.

28. Violations of Chapter 11, including those that GAB contends apply t

advocacy coordinated with a political candidate, are enforceable through civil and c

penalties. Wis. Stat. §§ 11.60, 11.61.


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29. GAB and Chisholm maintain that the term “for political purposes” re

advocacy if it is made or incurred under the authorization, direction or control of or

prearrangement with a candidate or a candidate’s agent.

30. On June 20, 2013, GAB formally authorized a statewide campaign-fi

investigation predicated on the interpretation of Wisconsin law that issue advocacy

regulation when coordinated with a political candidate: “Any individual or organiza

including a corporation, may make an independent disbursement or purchase an issu

Coordination with a candidate or candidate committee transforms such purportedly

disbursements and even true ‘issue ads’ into in-kind or monetary contributions to a

GAB’s resolution stated that such coordination may violate the contribution limits a

well as the reporting requirements, of Wisconsin law.

31.

GAB filed an amicus brief in O’Keefe v. Chisholm, No. 14-1822 (7th

Aug. 27, 2014), advancing the view that “purported independent groups have no abs

Amendment right to engage in ‘coordinated issue advocacy’ with a candidate, becau

so such groups have made contributions to the candidate, making them no longer ‘in

Ex. B, GAB Amicus Br. at 4.

32.

Mr. Francis Schmitz, who currently serves as a special investigator f

in its statewide investigation and serves as a special prosecutor nominated by Defen

Chisholm in the investigation, has filed papers in federal and state courts advancing

that issue advocacy on the part of a social-welfare organization may constitute a con


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influence, or has the effect of influencing, an election and that issue advocacy is coo

with a candidate or agent of a candidate. E.g., Ex. C, State’s Response to Motion to

33. GAB’s Executive Director, Defendant Kennedy, has offered a sworn

the Wisconsin Court of Appeals that “a candidate’s coordination with issue advocac

subject to campaign finance regulation because the coordination results in a politica

contribution.” Ex. D, Kevin Kennedy Aff. ¶ 9. Defendant Kennedy has publicly stat

interpretation is compelled by Wisconsin law.

34. Defendant Chisholm has also advanced the position that the definitio

political purposes” includes issue advocacy coordinated with a political candidate a

worked in concert with GAB in conducting its statewide issue-advocacy-coordinatio

investigation. Chisholm’s office formally commenced an investigation in August 20

alleged issue-advocacy coordination scheme. Chisholm has also advanced this posit

federal-court filings.

E. The Chilling Effect of GAB’s Coordinated-Issue-Advocacy Theo

35. In GAB’s view, coordination of issue advocacy with a political cand

result in various violations of Chapter 11, resulting in a concrete threat of civil or cr

enforcement against a person who collaborates with a candidate or office-holder con

issue advocacy.

36. First, in GAB’s view, under Wisconsin Statutes § 11.10(4) an entity

coordinates with a candidate or his official campaign committee becomes a subcom


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force against an official campaign committee. Under those regulations, the organiza

be barred from:

• Making independent expenditures without the permission of the cam

committee’s treasurer, Wis. Stat. § 11.16(1)(a);

• Using preexisting funds for any purpose, § 11.05(6);

•

Accepting corporate contributions for independent expenditures, § 1

• Accepting individual contributions for independent expenditures abo

limits applicable to the candidate’s committee, § 11.26(1); and

• Contributing to other candidates’ committees where the candidate’s

has already contributed the base amount, § 11.26(2).

37. Second, in GAB’s view, under Wisconsin Statutes § 11.06(4) expend

coordinated with a political candidate or his campaign committee are deemed contri

that committee. Under GAB’s position, expenditures associated with engaging in is

would thereby be rendered “contributions” to the campaign. If the party producing t

advocacy is a corporation, such “contributions” would be illegal per se under Wisco

Such “contributions” would also be illegal if they exceed contribution limits (which

individual, $1,000 for a state Senate candidate, $500 for a state assembly candidate,

local-office candidate, and up to $10,000 for candidates for other offices, Wis. Stat.

or if they are not properly reported.

38.

GAB’s vigorous advancement of this theory indicates that it intends


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thereby forcing it to forgo all such issue advocacy or else face criminal investigation

sanctions.

Count I

Violation of the First and Fourteenth Amendments and 42 U.S.C. § 19

Definition of “Political Purposes” Is Unconstitutionally Overbroad

39. CRG repeats and re-alleges the allegations of Paragraphs 1–38.

40.

The First Amendment to the United States Constitution, as applied to

the Fourteenth Amendment, protects CRG’s right to engage in speech about policy

including its right to make expenditures in furtherance of such speech. The First Am

also protects CRG’s right to associate with likeminded persons and to petition gover

officials in furtherance of its advocacy mission.

41. “Laws that burden political speech are subject to strict scrutiny, whic

the Government to prove that the restriction furthers a compelling interest and is nar

tailored to achieve that interest.” Citizens United v. FEC , 558 U.S. 310, 340 (2010)

marks omitted). When the Government restricts political speech, it therefore must d

that the restrictions are narrowly tailored to further the permissible objective of prev

pro quo corruption. Id . at 359. See also McCutcheon v. FEC , 134 S. Ct. 1434, 1452

42.

The Supreme Court “has never recognized a compelling interest in re

ads…that are neither express advocacy nor its functional equivalent.” WRTL, 551 U

the contrary, it has held that “[i]ssue ads…are by no means equivalent to contributio

quid-pro-quo corruption interest cannot justify regulating them.” Id. at 478–79.


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44. Moreover, GAB’s interpretation results in restriction and prohibition

that are not made for a political purpose and raise no risk of quid pro quo corruption

Wisconsin Statutes § 11.10(4), an organization that engages in any coordination wit

is subjected to Chapter 11’s campaign-committee regulations as to all its activities,

activities not coordinated with a political candidate or undertaken without any “polit

purposes.”

45. Accordingly, the restrictions of Wisconsin law, as interpreted by GA

advocacy coordinated with a political candidate are not supported by any compellin

are therefore overbroad and facially unconstitutional.

Count IIViolation of the Fourteenth Amendment and 42 U.S.C. § 1983:

Definition of “Political Purposes” Is Unconstitutionally Vague


47. The Due Process Clause of the Fourteenth Amendment protects Plain

not to be subject to vague government edicts.

48. The Seventh Circuit has already held that, to protect that right, “the s

definition of ‘political purposes’ in section 11.01(16) and the regulatory definition o

committee’ in GAB § 1.28(1)(a) are limited to express advocacy and its functional e

those terms were explained in Buckley and Wisconsin Right to Life II .” Barland II , 7

834.

49. That reasoning applies with equal or greater force to Chapter 11’s tre


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activities, or what political effect its speech may have, and therefore must forego pr

speech and association to avoid criminal prosecution. See WRTL, 551 U.S. at 467.

50. Wisconsin Statutes § 11.01(16), as interpreted by GAB and applied t

various provisions of Chapter 11, is therefore unconstitutionally vague and violates

rights under the Due Process Clause of the Fourteenth Amendment.

Count IIIViolation of the First and Fourteenth Amendments and 42 U.S.C. § 19

Definition of “Political Purposes” Is Unconstitutional as Applied to CRG’s Issu


52. The First Amendment to the United States Constitution, as applied to

the Fourteenth Amendment, protects CRG’s right to engage in speech about policy

including its right to make expenditures in furtherance of such speech. The First Am

also protects CRG’s right to associate with likeminded persons and to petition gover

officials in furtherance of its advocacy mission.

53.

“Laws that burden political speech are subject to strict scrutiny, whic

the Government to prove that the restriction furthers a compelling interest and is nar

tailored to achieve that interest.” Citizens United , 558 U.S. at 340 (quotation marks

When the Government restricts political speech, it therefore must demonstrate that t

restrictions are narrowly tailored to further the permissible objective of preventing q

corruption. Id . at 359. See also McCutcheon v. FEC , 134 S. Ct. 1434, 1452 (2014).

54. The Supreme Court “has never recognized a compelling interest in re


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55. The restriction of Wisconsin law, as interpreted by GAB, on issue ad

coordinated with a political candidate is not supported by any compelling governme

and is not narrowly tailored to the government’s interest in preventing quid pro quo

is therefore unconstitutional as applied to CRG’s intended coordinated issue advoca

Count IV

Declaratory Judgment Pursuant to 28 U.S.C. §§ 2201 and 2202

56. CRG repeats and re-alleges the allegations of Paragraphs 1-55.

57. An actual controversy exists between Defendants and CRG regarding

constitutionality of Wisconsin’s regulation of issue advocacy coordinated with a po

candidate.

58. CRG is entitled to a declaration of its rights under the First and Fourt

Amendments and any further necessary or proper relief against Defendants pursuan

§§ 2201 and 2202.

Count V

Preliminary and Permanent Injunctive Relief


60. CRG’s First and Fourteenth Amendment rights are well established u

law of the Supreme Court and courts of appeals. See, e.g., Barland II , 751 F.3d at 83

551 U.S. at 476. Accordingly, CRG has a strong likelihood of success on the merits

61. CRG is suffering irreparable injury as a result of Defendants’ enforce

interpretation of Wisconsin’s campaign-finance statute to restrict CRG from fully an


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62. Defendants will suffer no injury at all if they are enjoined from enfor

unconstitutional interpretation of Wisconsin’s campaign-finance statute.

63. An injunction would serve the public interest, as the public interest f

exercise of First Amendment rights and is not harmed by the injunction of governm

that is likely unconstitutional. ACLU of Ill. v. Alvarez, 679 F.3d 583, 589–90 (7th C

PRAYER FOR RELIEF

Wherefore, Plaintiff CRF respectfully requests that this Court enter judgmen

Defendants, including:

a) An order declaring that the definition of “political purposes” found in

Statutes § 11.01(16) is facially unconstitutional and unconstitutionall

adopting a limiting construction of that definition that excludes issue

whether or not coordinated with a political candidate;

b) An order declaring that the restrictions of Wisconsin Statutes §§ 11.

11.10(4) 11.12, 11.14, 11.16, 11.23, 11.24, 11.26, 11.27, 11.30, 11.3

11.60, 11.61, and 11.66 are facially unconstitutional and unconstituti

or adopting a limiting construction of those provisions that excludes

advocacy, whether or not coordinated with a political candidate;

c)

An order declaring Wisconsin Statutes § 11.01(16), as applied throug

restrictive provisions of Chapter 11, unconstitutional as applied to CR

intended coordinated issue advocacy;


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Chapter 11 as applied to issue advocacy, whether or not coordinated

political candidate;

e) Costs and attorneys’ fees pursuant to 42 U.S.C. § 1988 or any applic

or authority;

f) Such other relief as this Court determines is just and proper.

Dated: October 2, 2014 Respectfully submitted,

/s/ David B. RivkinDavid B. RivkinLee A. CaseyMark W. DeLaquil

Andrew M. GrossmanRichard B. RaileBaker & Hostetler LLP1050 Connecticut Ave., N.W., SuitWashington, D.C. 20036(202) [email protected]

Attorneys for Plaintiff CRG


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EXHIBIT A


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June 21, 2000

Susan Armacost Elections Board Op

Legislative/PAC DirectorWisconsin Right to Life

10625 West North Avenue, Suite LLRandy NashChairperson Milwaukee, Wisconsin 53226-2331

William S. ReidDirector of Governmental Affairs

Metropolitan Milwaukee Association of Commerce

756 North Milwaukee StreetMilwaukee, Wisconsin 53202

Re: Guidelines Relative to Non-advocacy Candidate Commentary, Voter R

Get-out-the Vote Efforts

Dear Ms. Armacost and Mr. Reid:

Each of you has requested, on behalf of your respective organizations, that the State Ele

issue a formal opinion establishing guidelines for voluntary associations and other non-

wish to spend money for the purpose of publishing and distributing the following types communications: communications that raise voter awareness about candidates and camp

communications that promote voter registration or voter participation; and communicat

limited to members, shareholders and subscribers.

Your requests are as follows:

Metropolitan Milwaukee Association of Commerce

In the past, if a get-out-the-vote effort did not advocate a specific candidate, they were

election laws (s.11.04, Wisconsin Statutes).

A November 26, 1999 decision (No. 99-2574, Court of Appeals, District IV) says the E

investigate get-out-the-vote efforts carried out under s.11.04 even if they do not advoca

candidate. Based on this recent court decision, if a candidate or campaign is aware or en

non-advocacy effort, the cost of the effort is a reportable contribution that must be fully


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Susan Armacost

William S. ReidJune 21, 2000

Page 2

Given the short time frame prior to the upcoming spring elections, it is imperative for thto provide fair warning and guidance to the many organizations conducting get-out-the-

WISCONSIN RIGHT TO LIFE

I am writing on behalf of Wisconsin Right to Life, Inc. (WRL, Inc.) and the Wisconsin

Political Action Committee (WRL/PAC) in order to receive State Elections Board clari

Clearinghouse Rule 99-150 and the November 26 Court of Appeals decision in WisconVoter Participation v. State Elections Board would affect various activities that may be

WRL, Inc. and WRL/PAC in the 2000 elections.

I have enclosed copies of some publications, a phone script and a radio ad that we have

elections. We would like clarification of how the Board would view these activities in l

Court decision and Clearinghouse Rule 99-150.

Specifically, we would like to know: 1) which of these activities would the Board con

Clearinghouse Rule 99-150 and, thus, be subject to state election law? 2) if any of thcarried out in consultation with a candidate or a candidate's committee, which ones

consider to be a contribution to a candidate's campaign and thus, subject to state elec

Board considers any of these materials to be subject to state election law, would they

were received only by members of Wisconsin Right to Life?

The Elections Board prefaces its commentary on the specifics of a response to your requ

caveat that three of the areas -- "issue" advocacy, "coordinated" expenditures, and intra-

communications -- in which you have requested the Board's opinion are so fact intensivopinion is virtually limited to the facts upon which the opinion is predicated. Slight ch

wording of an issue advocacy communication or minimal increases in the amount or ex

by a campaign agent regarding an expenditure of an independent committee, or expandiassociation communication beyond the strict limits of "endorsements of candidates, pos

referendum or explanation of its views and interests," can completely change the regula

I. WRL Request

WRL is requesting the Board's opinion with respect to the association's activities in its

not with respect to its sponsored PAC's activity. Consequently, what WRL is asking tdescribed communications or described circumstances will impose a registration and r

the association -- a requirement that the association is not able to meet because of

(MCFL f h h ld f h U S S C M h


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Susan Armacost


Page 3

communication that would otherwise be unregulated, what kind of "contacts" betweWRL and officers or agents of the campaign that "benefits" from the communi

"coordination" between the two entities causing the communication (and the expenditurcampaign finance regulation; 3) if the text of a communication would cause it to be su

the express advocacy test, would that communication nevertheless be free from regu

Stats., if the association limited distribution of the communication to members, sharehothe association, to the exclusion of all others.

DISCUSSION

A. Express Advocacy vs. Issue Advocacy

The term "express advocacy," in the context of campaign finance regulation, was estabSupreme Court's decision in Buckley v. Valeo, 424 U.S. 1 (1976), in the Court's revie

Election Campaign Act's expenditure limitations, (s.608(e)(1) of the federal act ):

We agree that in order to preserve the provision against invalidation on vagueness gr

must be construed to apply only to expenditures for communications that in express

election or defeat of a clearly identified candidate for federal office. (at p.702)

One concludes from the court's discussion that money that is spent, (by an otherwise no

a communication which expressly advocates the election or defeat of a clearly identi

subject to campaign finance regulation. Conversely, money that is spent (by an

registrant) for a communication that does not expressly advocate the election or de

identified candidate is not subject to campaign finance regulation (absent other circumdiscussion on "coordination"). In applying Buckley, the courts have said that the e

standard establishes a three-prong test for determining whether a communication, andfor it, is subject to regulation (i.e., contains express advocacy):

1. The communication must clearly identify a candidate. Whether by name, deor other depiction, the identity of the candidate(s) discussed in the commu

unmistakable.

2. The communication must advocate the candidate's election or defeat.

3. The advocacy must be express, not implied.


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Susan Armacost


Page 4

1. “Vote for;”

2. “Elect;”

3. “Support;”

4. “Cast your ballot for;”

5. “Smith for Assembly;”

6. “Vote against;”

7. “Defeat;”

8. “Reject.”

The Buckley decision and, particularly, its express advocacy test have been the subj

federal court decisions. Broadly generalized, those decisions go in two different direction reflected in decisions in the First, Second and Fourth Circuits of the United

Appeals (and in various district court decisions) takes a strict-construction approac

express advocacy test, requiring use of the "magic words," or an equivalent of those w

communication to regulation. More significantly, this direction limits the determinadvocacy to the text of the message and virtually excludes examination of the cont

message is uttered. This approach considers the Buckley C ourt to have intended the

test to be a "bright line" demarcation between what may be regulated and what maydirection is reflected in the U.S. Court of Appeals Ninth Circuit's decision in FEC v. Fu

857 (9th Cir. 1987), which rejected a strict "magic words" approach and added

determination of express advocacy in the form of "limited reference to external events."

We begin with the proposition that "express advocacy" is not strictly limited to communicacertain key phrases. The short list of words included in the Supreme Court's opinion in B

exhaust the capacity of the English language to expressly advocate the election or defeat o

test requiring the magic words "elect," "support," etc., or their nearly perfect synonyms fo

express advocacy would preserve the First Amendment right of unfettered expression only

eviscerating the Federal Election Campaign Act. "Independent" campaign spenders work

candidates could remain just beyond the reach of the Act by avoiding certain key words w

message that is unmistakably directed to the election or defeat of a named candidate. (at p

We conclude that context is relevant to a determination of express advocacy. A considerat

in which speech is uttered may clarify ideas that are not perfectly articulated, or supply ne

that are unexpressed but widely understood by readers or viewers. We should not ignore e

that contribute to a complete understanding of speech, especially when they are factors th

must consider in evaluating the words before it. However, context cannot supply a meaninincompatible with or simply related to the clear import of the words (at pp 863 864)


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Second, speech may only be termed "advocacy" if it presents a clear plea for action, and tmerely informative is not covered by the Act. Finally, it must be clear what action is advoc

cannot be "express advocacy of the election or defeat of a clearly identified candidate" wh

minds could differ as to whether it encourages a vote for or against a candidate or encour

take some other kind of action.

We emphasize that if any reasonable alternative reading of speech can be suggested, it ca

advocacy subject to the Act's disclosure requirements. This is necessary and sufficient to p

forms of speech other than the campaign advertising regulated by the Act. At the same tim

court is not forced under this standard to ignore the plain meaning of campaign-related sp

for certain fixed indicators of "express advocacy." (at p.864)

A careful analysis of what the Furgatch court is really saying raises the question wh

saying something different from Buckley or saying the same thing differently. Th

question seems to depend on the analyst's perspective. What the court did say was thaestablish a "bright line." Also, the three-prong Buckley test becomes a four-prong test:

1. S peech is "express" for present purposes if its message is unmistakable and unamb

of only one plausible meaning.

2. Second, speech may only be termed "advocacy" if it presents a clear plea for actio

that is merely informative is not covered by the Act.

3. Finally, it must be clear what action is advocated. Speech cannot be "express advoc

or defeat of a clearly identified candidate" when reasonable minds could differ

encourages a vote for or against a candidate or encourages the reader to take some oth(emphasis supplied throughout)

4. (Although the court didn't spell the 4th one out: the speech must identify clearly the

That is a given under Buckley.)

Thus, express advocacy is speech that is unmistakable and unambiguous, sugges

plausible meaning , containing a clear plea for action and it must be clear what action i for or against a [clearly identified] candidate. That sounds a lot like the functional

"magic words." But, at least, the Ninth Circuit opened the door to consideration of cadvocacy determinations. Other federal courts, however, have not chosen to walk throu

Wisconsin codified the express advocacy test in ss.11.01(6), (7) and (16), Stats., which

"contributions" and "disbursements" must be made for "political purposes" and that "pincludes (but by the statute's own language is not to be limited to) "The making of


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Page 6

(c) Make expenditures for the purpose of expressly advocating the election or defeat o

identified candidate.

(emphasis supplied)

Note that the rule did not include, or make reference to, the "magic words" test.

The Board's application of the express advocacy test became the subject of litigatio

several non-registrants spent money to comment (positively or negatively) on the vivoting records of specific candidates. In WMC v. State Elections Board , 227 Wis.2d

State Elections Board made a determination that the defendant, WMC, a non-registrcommunications that contained express advocacy, notwithstanding that the text of those

did not contain any of the eight terms of Footnote 52 (or even any equivalent of the t

52). When WMC failed to comply with registration and reporting under ch.11, Stats., Elections Board, the Board sought to enforce its order in circuit court.

After the Dane County Circuit Court dismissed the Elections Board's complaint on process grounds, the Wisconsin Supreme Court upheld the trial court's dismissal on th

Board was attempting to do retroactive rulemaking by making a determination of e

based on context. The Wisconsin Supreme Court said that the Board may not make aexpress advocacy, (and thereby impose campaign finance regulation), based on the

speech is uttered or a communication is made -- unless before making that determinati

enacts a statute or the Elections Board adopts a rule spelling out that context-based test.

The Court added its opinion that the legislature or the Board may be able to craft aexpress advocacy rule that may be able to pass constitutional muster, but that that r

applied prospectively:

We stress that this holding places no restraints on the ability of the legislature and t

further a constitutional standard of express advocacy to be prospectively applied. W

to do so, as we are well aware of the types of compelling state interests which may

limited restrictions on First and Fourteenth Amendment rights. (at p.32)

But the Court also qualified any attempt to define "express advocacy" with the

communication that meets that definition must contain "explicit words of advocacy of

of a candidate":

C i t t ith thi i i t th t d fi iti f d

S A


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Page 7

included the functional equivalent of any of those eight terms. The standing coWisconsin Legislature objected to the Board's rule and the rule was referred to the L

Committee for Review of Administrative Rules (JCRAR). JCRAR also objectedintroduced a bill amending s.11.06(2) and creating ss.11.01(13) and (20) and 11.

requiring reporting of certain "issue advocacy" disbursements made during the last 6

election.

Unless (and until) the legislature enacts the legislation recommended by JCRAR, howe

applicable in Wisconsin is the one that was applicable before the WMC case: expendituregulation on the basis of the message they purchase only if the message express

election or defeat of a clearly identified candidate. The Board believes that that stan

even without a rule, a message that does not include some form of the "magic

equivalents, is not subject to campaign finance regulation.

Looking at the materials included with WRL's opinion request, Items (1), (3), (4), (6), (

include any of the "magic words" or any equivalent of them. Even under the Furgatchcontain no "plea to action" whatsoever, let alone a "clear plea". That means that not urge the reader or listener or viewer to vote one way or another, they do not urge the rea

viewer to do anything. Consequently, to paraphrase the Court in WMC, they do not

words of advocacy of election or defeat of a candidate," and are not subject to cregulation (based on their text alone).

Items (2) and (5) of the WRL opinion request include the following language that s

action, but may stop short of express advocacy:

Item (2)

The November 3 election offers a clear choice between candidates running in your a

You can truly make a difference for the women harmed by abortion and for the

whose beating hearts must not be silenced.

BE INFORMED. MAKE A COMPASSIONATE CHOICE.

This language asks that the reader/voter make a compassionate choice on November 3: the compassionate choice is to vote pro-life. The plea to action is clear; the course of a

S A t


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Page 8

Whether either one of these communications "includes explicit words of advocacy of e

of a candidate may depend on the political orientation of the reader, but they are closfive.

B. Coordination of Expenditures vs. Independent Expenditures

In striking down limits on independent expenditures -- because of the absence of the p

quo that justified restrictions on contributions -- the Buckley Court recognized an approach for money spent on communications that are "coordinated" with a candidate

or agents. In this tension between permissible contribution limits and impermiss

expenditure limits, the court recognized the necessity of regulating expenditure

"coordinated" with a campaign that they ceased to be independent and were enough lik be treated as such:

The parties defending [the cap on expenditures by individuals] contend that [the ca

prevent would-be contributors from avoiding the contribution limitations by the s paying directly for media advertisements or for other portions of the candidate's cam

Yet such controlled or coordinated expenditures are treated as contributions rather

under the Act. Section 608(b)'s contribution ceilings rather than s.608(e)(1)'s indepe

limitation prevent attempts to circumvent the Act through prearranged or coordin

amounting to disguised contributions. By contrast, s.608(e)(1) limits expenditures for ex

candidates made totally independently of the candidate and his campaign.

(Buckley at pp.46-47, emphasis supplied)

The Court did not, however, provide a definition of, or standard for, "prearrange

expenditures amounting to disguised contributions." Furthermore, the Buckledistinguish coordinated express advocacy from coordinated issue advocacy or e

question whether one is distinguishable from the other with respect to governm

regulate.

The federal courts have begun to look at the issue of "coordinated" issue advoca

United States Court of Appeals First Circuit, in Clifton v. Federal Election Comm1309, held that the FEC's regulations restricting corporate contacts with cacandidate's agents) with respect to certain forms of issue advocacy, (voter gu

records), were beyond the FEC's authority under the Federal Election Campaign A

regulation on voter guides provided that either a corporation or union publishing ano contact at all with any candidate or political committee regarding the preparat

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Page 9

impose and police requirements as to what private citizens may say or write. Commerthe Supreme Court has long treated compelled speech as abhorrent to the First Amen

compulsion is directed against individuals or corporations. (at p.1313)

It seems to us no less obnoxious for the FEC to tell the Maine Committee how much sp

in its voter guides to the views of particular committees. We assume a legitimat

preventing disguised contributions; … The point is that the interest cannot norma

compelling a private entity to express particular views or by requiring it to provide

space or an opportunity to appear. (at pp.1313-1314)

The other rule principally at issue is the limitation on oral contact with candidates. W

patently offensive to the First Amendment in a different aspect: it treads heavily upon t

individual or corporate, to confer and discuss public matters with their legislative

candidates for such office. As we have explained, the regulations bar non-written con

contents , not merely the preparation and distribution of voter guides and voting record

candidates and incumbents about their positions on issues like abortion are a precise t

rules as applied here. (at p.1314)

It is hard to find direct precedent only because efforts to restrict this right to commun

rare. But we think that it is beyond reasonable belief that to prevent corruption or illic

government could prohibit voluntary discussions between citizens and their legislators

public issues. The only difference between such an outright ban and the FEC rule is th

discussion so long as both sides limit themselves to writing. Both principle and practi

inadequate distinction. (at p.1314)

It is no business of executive branch agencies to dictate the form in which free citize

their legislative representatives. Further, the restriction is a real handicap on intercou positions and votes can often be discerned only through oral discussion; as any courtr

stilted written interrogatories and answers are no substitute for cross-examinatio

communication, solely for prophylactic reasons, is not readily defensible. (at p.1314)

The First Circuit was not saying that issue advocacy could be coordinated and it was

that the FEC could not promulgate a rule prohibiting coordination of issue advocacywas saying was that the FEC could not attempt to prevent coordination with a prophyl

all oral contact between candidates and committees who make expenditures after that words, the FEC may promulgate a rule proscribing illicit coordination, but the rule bef

not that rule. The further implication of this decision is that the outright ban on acooperation or action in concert" such as appears in the Wisconsin Statute, s.11.06(7), S

is identical to the language of the federal statute), may be unenforceable. Some level o

did d i ki di i i ibl

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What constitutes "coordination," however, remained for other courts and other decisioFederal Election Commission v. The Christian Coalition, 52 F. Supp. 2d 45, (August,

States District Court for the District of Columbia addressed the question of coordinagenerally, and coordinated "issue advocacy" in particular. The court found that c

advocacy was subject to campaign finance regulation, but that "the standard for coor

restrictive, limiting the universe of cases triggering potential enforcement actions to thwhich coordination is extensive enough to make the potential for corruption through leg

quo palpable without chilling protected contact between candidates and corporations

p.91) The court tried to strike a balance between the position of the Coalition that expenditures for the purpose of express advocacy could be subject to regulation and th

FEC that any "consultation between a potential spender and a federal candidate's camp

about the candidate's plans, projects, or needs renders any subsequent expenditures mad

of influencing the election "coordinated" contributions." (at p.92)

While the FEC's approach would certainly address the potential for corruption in th

scenario, it would do so only by heavily burdening the common, probably necessar

between candidates and constituencies during an election campaign. (at p.96)

I take from Buckley and its progeny the directive to tread carefully, acknowledging

coordination will convert an expressive expenditure into a contribution but that the spe

deemed to forfeit First Amendment protections for her own speech merely by having

consultations or coordination with a federal candidate. (at p.97)

A narrowly tailored definition of expressive coordinated expenditures must focus on

that are of the type that would be made to circumvent the contribution limitations. (at p

That portion of the FEC's approach which would treat as contributions expre

expenditures made at the request or suggestion of the candidate or an authorized

tailored. The fact that the candidate has requested or suggested that a spender engag

indicates that the speech is valuable to the candidate, giving such expenditures sufficie

qualities to fall within the Act's prohibition on contributions. ( at p.98)

In the absence of a request or suggestion from the campaign, an expressive exp

"coordinated" where the candidate or her agents can exercise control over, or whe substantial discussion or negotiation between the campaign and the spender over, a co

contents; (2) timing; (3) location, mode, or intended audience (e.g., choice between n

advertisement); or (4) "volume" (e.g., number of copies of printed materials or frequen

Substantial discussion or negotiation is such that the candidate and the spender eme

joint venturers in the expressive expenditure, but the candidate and spender need not b

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Voter Participation, notwithstanding that the communication did not (concededly) exthe election or defeat of a clearly identified candidate.

The Court of Appeals agreed with the Dane County Circuit Court, (from whose decisio

being taken), that "express advocacy is not an issue in this case." (at p.6) The Court

that while (under Buckley) "independent expenditures that do not constitute exprescandidate are not subject to regulation, … contributions to a candidate's campaign

whether or not they constitute express advocacy."(at p.7)

Contrary to plaintiff's assertions, then, the term "political purposes" is not restricted

statutes or the code, to acts of express advocacy. It encompasses many acts undertacandidate's election -- including making contributions to an election campaign. …(at p

Under Wis. Adm. Code s.ElBd 1.42(2), a voluntary committee such as the coalition

making expenditures in support of, or opposition to, a candidate if those expendit

cooperation or consultation with any candidate or … committee of a candidate … and

at the request or suggestion of, any candidate or … committee …" and are not reporte

to the candidate. These provisions are consistent with the federal campaign finance law

Supreme Court in Buckley -- laws which, like our own, treat expenditures that are "coo

made "in cooperation with or with the consent of a candidate … or an authorizcampaign contributions. (at pp.8-9)

There is little doubt that had the coalition given 354,000 blank paid postcards to the

committee, allowing it to put whatever message it wished on them, this would have

contribution. …. If there was consultation or coordination with the Wilcox camp

difference that the chosen message was printed by the Coalition rather than by the camhave noted above, we think the Board was correct in observing (in one of its briefs to

that "[i]f the mailing and the message were done in consultation with or coordinate

Wilcox campaign, the [content of the message] is immaterial." (at pp.9-10)

In finding that "if the mailing and the message were done in consultation with or coo

Justice Wilcox campaign, the [content of the message] is immaterial," the court did nstandard for "coordination" other than to recite the Wisconsin Statutory standard set for

independent disbursements, (s.11.06 (7), Stats.). That standard is that the commitmaking the disbursements does not act in cooperation or consultation with, or act in c

the request or suggestion of, any candidate or agent or authorized committee of a csupported by the disbursements.

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Page 12

the potential for a quid pro quo is immediate and apparent and, therefore, that the exp be treated as a contribution.

The Wisconsin Court of Appeals did not need to establish a standard for "coordinat

proceeding before it was not one to determine whether "coordination" occurred, but

determine whether the Elections Board could investigate whether "coordination" ha putting the standard established in Christian Coalition together with Wisconsin's statut

derives a standard as follows: coordination is sufficient to treat a communication (or th

it) as a contribution if:

The communication is made at the request or suggestion of the campaign (i.e.

agents of the candidate); or, in the absence of a request or suggestion from the

cooperation, consultation or coordination between the two is such that the canagents can exercise control over, or where there has been substantial discussi

between the campaign and the spender over, a communication's: (1) content

location, mode, or intended audience (e.g., choice between newspaper or radio a

(4) "volume" (e.g., number of copies of printed materials or frequency Substantial discussion or negotiation is such that the candidate and the sp

partners or joint venturers in the expressive expenditure, but the candidate and be equal partners.

Turning to the eight items WRL has included, all eight would appear to be made fo

influencing voting at a specific candidate's election (if one concedes that the purpose of

of a candidate's position on an issue or issues is to influence their voting). Conseqabove standard, with respect to such communications, WRL would have to refrain fro

negotiation with the campaign over, a communication's: (1) contents; (2) timing; (3) lo

intended audience (e.g., choice between newspaper or radio advertisement); or (4)

number of copies of printed materials or frequency of media spots) such that the cspender (WRL) emerge as partners or joint venturers in the expressive expenditure

partners." And, of course, WRL could not act at the request or suggestion of the

candidate's agents.

Another approach to the same subject matter is to divide it into two categories: co

campaign and an independent committee in which 1) the campaign is the speaker and is the speaker. Each of those two categories would be divided into two sub-categories

philosophy, views and interests, and positions on issues and 2) discourse on campaign s

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Page 13

to confer and discuss public matters with their legislative representatives or candida(p.1314)

A candidate's (or campaign's) right to discuss campaign strategy, however, is not so a

slippery slope and the best advice is to avoid (or, at the very least, minimize) it. Thediscussion comes to providing details that will facilitate or optimize the indepen

expenditures, the more that discussion " dissolves in practical application" into coordin

a committee with campaign literature or an 8 x 10 glossy picture is one thing, but provi

with an itinerary of media purchases and appearances, including text, is another.

Similarly, an independent committee's right to meet and discuss its philosophy, views

positions on issues, is probably equally absolute to that of the candidate. But the right to discuss its strategy for the campaign probably doesn't exist if the committee w

independent. A campaign has no need to know that information other than for

coordination.

C. Communications to Restricted Class (Members, Shareholders and Subscrib

Under s.11.29(1), Stats., a voluntary association, like WRL, may communicate a candid

a position on a referendum or an explanation of the association's views and interests wi

the exclusion of all others without subjecting that communication to campaign finanOp. El. Bd. 88-4, the Elections Board issued a formal opinion that says that the statute

strictly. That means the communication's distribution must be limited to the associ

shareholders and subscribers to the exclusion of all others. A distribution pattern th beyond the restricted class may render the protection of s.11.29(1), Stats., inapplicab

that Opinion, if the communication's message goes beyond a candidate endorsement

referendum or an explanation of the association's views and interests, the protection of may not apply:

Wisconsin law prohibits corporations and cooperatives and unregistered organization

political activity. Section 11.38(2), Stats. The exclusions of s.11.29(1), Stats., provide

those requirements. (p.1)

Wisconsin law clearly permits any organization to make communications to

Communications of a political nature which consist of endorsements of candidate

referendum or an explanation of the organization's views or interests are not subject

and reporting requirements of Chapter 11 Stats This is provided that the communi

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Page 14

candidate, the communications are not subject to disclosure because the audiencrestricted . (p.2)

If a candidate requests the organization to communicate to its membership, the organ

its membership of candidate endorsements and an explanation of its views or intere

interests of the candidate do not qualify for the exclusion from disclosure except to

organization utilizes them in its explanation of its views and interests. To the extent th

of the candidate's views and interests go beyond the statutory exclusion they are subjeclimitation under the applicable provisions of Chapter 11, Stats. (p.2)

Communications of a political nature which go beyond the scope articulated in s.11.2

be subject to the registration and reporting requirements of Chapter 11. If the politic

are done in cooperation or consultation with, in concert with, or at the request o

candidate, the communications will be subject to the contribution limits of Chapter 11.

To be on the safe side, if an organization confines itself to communicating "a candidat position on a referendum or an explanation of the association's views and interests wi

the exclusion of all others," pays for the communication with its own funds, and does candidate literature with the communication, the organization's communications will ch.11, Stats.

Turning to the specific items included in WRL's letter: all eight of the pieces communi

views, position or voting record on abortion issues but would probably qualify as candidate endorsement or an explanation of the views and interests of the association

that s.11.29(1), Stats., exempts communication of the association's views and interests,

because the material originated with the association, the candidate's views or positionreflect the association's opinion of those views. Generally, associations have bro

communicating material originating with the association. Associations may not, h

privilege to act as a conduit for campaign literature or campaign solicitations.

II. MMAC Request

Guidelines Relative to Non-advocacy Voter Registration and Voter Participatio

MMAC is also requesting the Board's opinion with respect to the association's actiregistrant capacity, not with respect to its sponsored PAC's activity. What MMAC is

in addition to the issues raised and discussed above, is: to what extent may an unregiste

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Willi S R id


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Page 15

11.04 Registration and voting drives. Except as provided in s.11.25(2)(b), ss.11.05

11.26 do not apply to nonpartisan campaigns to increase voter registration or particip

election that are not directed at supporting or opposing any specific candidate, politireferendum.

What that language is saying is that a committee of persons who engage in an effort to "

turnout" or voter registration, and who do so on a nonpartisan basis without directing th

"supporting or opposing any specific candidate, political party or referendum" are not recomply with ss.11.05 to 11.23, Stats., (which are the registration and reporting provisio

Stats.), or s.11.26, Stats. ( ch.11's limit on contributions). As long as an organization c

the specific language of s.11.04, Stats., the organization would appear to have a safe harConcededly, however, some issues have arisen about the interpretation of some of the l

s.11.04, Stats.

The litigation to which MMACs letter refers raised a controversial issue about the me

"nonpartisan" in the statutory phrase: "nonpartisan campaigns to increase vote participation." Neither s.11.01, Stats., nor s.5.02, Stats., (the two statutory sections d

election and campaign finance purposes), defines the term "nonpartisan." The ADictionary defines "partisan" as follows:

Partisan - n. 1. A militant supporter of a party, cause, faction, person or idea; adj. 2. D

biased in support of a single party or cause.

The Board believes that, at the very least, the legislature intended that an organizatiourging citizens to register and to vote could not, within the exemption of s.11.04, Stats

suggest that they vote to support one party or another or exhort the voter to part

designated party's partisan primary. This meaning is sometimes referred to as "Particapital "P". The legislature could also have intended that a voter registration or particip

seeking to qualify for the exclusion of s.11.04, Stats., could not be partial towards

faction, person or idea." This is sometimes referred to as "partisan" with a lower case interpretation of the term "partisan" or "nonpartisan" incorporates a certain amount of

into s.11.04, Stats., because of the subsequent phrase in the statute: "that are not supporting or opposing any specific candidate, political party, or referendum."

The best way to avoid this issue is to refrain from mentioning any "party, cause, faction

in the text of the message communicated to the public. Instead, by confining the messa

d i h ll h i f h d h i f h

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Page 16

well advised not to include in that discussion the organization's consideration of a v particulars of that drive.

STATE ELECTIONS BOARD

Randy Nash

Chair

CAPTION

Non-registrants, including corporations, may communicate to the general public their vand/or about a clearly identified candidate, without subjecting themselves to a registra

if the communication does not expressly advocate the election or defeat of a clearly iden

expenditures which are "coordinated" with a candidate or candidate's agent will

contribution to that candidate; intra-association communications that are restrictedendorsement, a position on a referendum or an explanation of the association's view

distributed to the association's members, shareholders and subscribers to the exclusionexempt from ch. 11, Stats., regulation; and a non-partisan, candidate-non-specific vot

voter participation drive is not subject to the registration and reporting requirements of


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EXHIBIT B

Case: 14-1822 Document: 117 Filed: 08/27/2014 Page


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No. 14-1822

_________________________

UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

_________________________

ERIC O’KEEFE and WISCONSIN

CLUB FOR GROWTH,INCORPORATED,

Plaintiffs-Appellees,

Consolidated with Appeal N

14-1888; 14-1899; 14-20014-2012; 14-2023; 14-258

v.

JOHN T. CHISHOLM, et al.,

Defendants-Appellants. _________________________

Appeal from The United States District Court

for the Eastern District of Wisconsin,

Case No. 2:14-cv-00139-RTR

Rudolph T. Randa, District Court Judge, _________________________

BRIEF OF AMICUS CURIAE

WISCONSIN GOVERNMENT ACCOUNTABILITY BOARD

IN SUPPORT OF DEFENDANTS-APPELLANTS

_________________________

LEE, KILKELLY, PAULSON &

YOUNGER, S.C. Thomas H. Brush

Paul W. Schwarzenbart

O W t M i St t S it 700



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RULE 26.1 DISCLOSURE STATEMENT

The full name of every party that the attorney represents in this case:

Wisconsin Government Accountability Board

The names of all law firms whose partners or associates have appear

the parties in this case (including proceedings in the district court or b

an administrative agency) or are expected to appear for the party i

court:

Lee, Kilkelly, Paulson & Younger, S.C.

If the party or amicus is a corporation: N/A

(i) Identify all its parent corporations, if any; and

(ii) List any publicly held company that owns 10% or more

party’s or amicus stock: N/A

Attorney’s Signature: /s/ Paul W. Schwarzenbart

Date: August 8, 2014

Attorney’s Printed Name: Paul W. Schwarzenbart

Address: One West Main Street, Suite 700, Madison, WI 53703-3327



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TABLE OF CONTENTS

RULE 26.1 DISCLOSURE STATEMENT ...........................................

TABLE OF CONTENTS .......................................................................

TABLE OF AUTHORITIES ..................................................................

INTEREST OF AMICUS CURIAE .......................................................

FED. R. APP. P. 29(c)(5) STATEMENT ..............................................

INTRODUCTION ..................................................................................

SUMMARY OF ARGUMENT ..............................................................

ARGUMENT .........................................................................................

I. EXPENDITURES FOR PURPOSES OTHER THAN

EXPRESS ADVOCACY CAN BE SUBJECT TO

REGULATION UNDER WISCONSIN LAW IF COORDINATWITH A CANDIDATE ..............................................................

A. The Wisconsin Court of Appeals Concluded That

Coordinated Conduct Not Involving Express Advocacy

Can Be Treated As “Contributions” Subject To Regulati

Under Wisconsin Law ......................................................

B. The GAB Has Reaffirmed That Coordinated Conduct

Not Involving Express Advocacy Can Be Regulated ......

C. The Scope of the John Doe Investigation Embraced



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D. This Court’s Recent Decision in Barland II Has NoImpact On Issues Related To Coordinated Expenditures

II. COORDINATED ISSUE ADVOCACY IS NOT PROTECTED

THE FIRST AMENDMENT ......................................................

A. The Supreme Court Continues to Recognize That

Coordinated Expenditures Can Be Treated As Contributito a Candidate ...................................................................

B. The McCutcheon Decision Has No Bearing On The Law

As It Impacts Coordinated Expenditures .........................

C. Sound Reasons Exist for the Continued Distinction

Between Independent and Coordinated Expenditures .....

CONCLUSION ......................................................................................

CERTIFICATE OF COMPLIANCE .....................................................

CERTIFICATE OF SERVICE ...............................................................



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TABLE OF AUTHORITIES

CASES P

Anderson v. Creighton,

483 U.S. 635, 107 S. Ct. 3034, 97 L. Ed. 2d 523 (1987) .......................

Austin v. Michigan Chamber of Commerce,494 U.S. 652, 110 S. Ct. 1391, 108 L. Ed. 2d 652 (1990) .....................

Buckley v. Valeo,

424 U.S. 1, 96 S. Ct. 612, 46 L. Ed. 2d 659 (1976) ............................. p

Citizens United v. Fed. Election Comm’n,

558 U.S. 310, 130 S. Ct. 876, 175 L. Ed. 2d 753 (2010) ..................... p

Clifton v. Federal Election Commission

114 F.3d 1309 (1st Cir. 1997) ...............................................................

Colorado Republican Fed. Campaign Comm. v. Fed. Election Comm’n

518 U.S. 604, 116 S. Ct. 2309, 135 L. Ed. 2d 795 (1996) .....................

Ctr. for Individual Freedom v. Madigan,697 F.3d 464 (7th Cir. 2012) ..................................................................

Fed. Election Comm’n v. Colorado Republican Fed. Campaign Comm

533 U.S. 431, 121 S. Ct. 2351, 150 L. Ed. 2d 461 (2001) .....................

Fed. Election Comm’n v. Nat’l Conservative Political Action Comm.,

470 U.S. 480, 105 S. Ct. 1459, 84 L. Ed. 2d 455 (1985) .......................

Federal Election Commission v. The Christian Coalition,

52 F.Supp.2d 45 (D.D.C. 1999) ........................................................... p



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McCutcheon v. Fed. Election Commn, ___ U.S. ___, 134 S. Ct. 1434, 188 L. Ed. 2d 468 (2014) ................... p

McIntyre v. Ohio Elections Comm’n,

514 U.S. 334, 115 S. Ct. 1511, 131 L. Ed. 2d 426 (1995) .................... 2

Nixon v. Shrink Missouri Gov’t PAC ,

528 U.S. 377, 120 S. Ct. 897, 145 L. Ed. 2d 886 (2000) .......................

Shays v. Fed. Election Comm'n

528 F.3d 914 (D.C.Cir. 2008) .............................................................. 2

Wisconsin Coal. for Voter Participation, Inc. v. State Elections Bd.,

231 Wis. 2d 670, 605 N.W.2d 654 (Ct.App. 1999) .............. 6, 10, 11,

Wisconsin Right To Life, Inc. v. Barland ,

751 F.3d 804 (7th Cir. 2014) ................................................................ p

Wis. Right to Life State Political Action Comm. v. Barland ,

664 F.3d 139 (7th Cir. 2011) ............................................................18,

WISCONSIN LAWS AND STATUTES

2007 Wisconsin Act 1 ............................................................................

Opinion El Bd 00-2 .............................................................................. p

Wis.Adm.Code § ElBd [GAB] 1.20 .......................................................

Wis.Adm.Code § ElBd [GAB] 1.42 .......................................................

Wis. Stat. § 5.05 ...................................................................................1

Wis. Stat. § 11.01 .................................................................................2



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Wis. Stat. § 11.10 .............................................................................14,

FEDERAL LAW AND STATUTES

Bipartisan Campaign Reform Act of 2002 sec. 202 ...............................

Federal Election Campaign Act of 1971 sec. 608 ..................................

Federal Election Campaign Act of 1971 sec. 9012 ................................

Fed. R. App. P. 29 ..................................................................................

IRS Code § 501 [26 U.S.C. § 501] .........................................................

42 U.S.C. § 1983 ..................................................................................2

OTHER AUTHORITIES

B.A. Smith, “Super Pacs” and the Role of “Coordination” in Campai

Finance Law (herein, “Smith”), 49 Willamette L. Rev. 603 (2013) 21-



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IDENTITY AND INTEREST OF AMICUS CURIAE

The Wisconsin Government Accountability Board (“GAB

responsible for the administration and enforcement of the election

campaign finance laws of the state of Wisconsin. Wis. Stat. § 5.05(1)

GAB’s role is not to advocate what the law should be, but rather, as a

partisan executive branch agency, to faithfully administer and enforce

it believes the law requires. The GAB’s interest in this matter is to assi

court in determining whether “coordinated issue advocacy” can be su

to regulation under the Wisconsin campaign finance law and, if so, wh

the First Amendment to the United States Constitution bars enforcem

such regulations.

FED. R. APP. P. 29(c)(5) STATEMENT

Pursuant to Fed. R. App. P. 29(c)(5), the GAB affirms th

counsel for a party authored this brief in whole or in part, no such co

or party made a monetary contribution intended to fund the preparati

submission of this brief, and no person other than the GAB or its co

made a monetary contribution to the preparation or submission of this



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Growth (collectively, “WCFG”) asserted claims under 42 U.S.C. §

They alleged that Defendant-Appellant John Chisholm and o

(collectively, “Defendants”) violated WCFG’s First Amendment righ

undertaking a “John Doe” investigation relative to their conduct d

Wisconsin election campaigns in 2011 and 2012. WCFG’s com

alleges that:

Defendants are basing their current phase of the

investigation on a theory of campaign coordinationthat would make nearly all political advocacy in

Wisconsin subject to government scrutiny andregulation. In particular, their theory is that Wis.Stat. § 11.01(16), which defines “political

purposes” for purpose of Wisconsin campaign-

finance law, reaches communications other than

those that are express advocacy or its functionalequivalent . On that basis, Defendants assert that

speech and speech expenditures coordinated with a

campaign or campaign committee are subject toWisconsin laws limiting contributions to campaigns

and mandating disclosure.

See Complaint, ¶ 95; Defendants’ Separate Appendix (“Sep. App.”)

(emphasis added). WCFG alleged this “theory of campaign coordina

was flawed because WCFG only engaged in issue advocacy. Id ., ¶ 99

App. 30-31.



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concluded that:

The defendants are pursuing criminal charges

through a secret John Doe investigation against the plaintiffs for exercising issue advocacy speech

rights that on their face are not subject to the

regulations or statutes the defendants seek toenforce. This legitimate exercise of O’Keefe’s

rights as an individual, and WCFG’s rights as a501(c)(4) corporation, to speak on the issues has been characterized by the defendants as political

activity covered by Chapter 11 of the Wisconsin

Statutes, rendering the plaintiffs a subcommittee of

the Friends of Scott Walker (“FOSW”) andrequiring that money spent on such speech be

reported as an in-kind campaign contribution. This

interpretation is simply wrong.

R. 181:12-13.1 GAB supports Defendants’ appeals from the District C

orders denying their motions to dismiss and granting the prelim

injunction because it believes the District Court erroneously cons

Wisconsin law and erroneously extended absolute First Amend

protection to coordinated issue advocacy.

SUMMARY OF ARGUMENT

Since Buckley v. Valeo, 424 U.S. 1, 96 S. Ct. 612, 46 L. Ed. 2

(1976), superseded by statute as stated in McConnell v. FEC, 540 U.

124 S. Ct. 619, 157 L. Ed. 2d 491 (2003), the United States Supreme



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has recognized that the First Amendment limits the ability to reg

expenditures for political purposes by “independent” speakers. Buckley

that expenditure limits did not apply unless an independent sp

engaged in what came to be known as “express advocacy.” Id ., 424 U

45. However, the Buckley Court also noted that expenditures “control

coordinated” with candidates were “treated as contributions rather

expenditures” under the Federal Election Campaign Act of 1971 (“FE

and that such treatment “prevent[ed] attempts to circumvent the

through prearranged or coordinated expenditures amounting to disg

contributions.” Id . at 46-47, citing FECA sec. 608(b).

In denying Defendants’ motion to dismiss and entering

preliminary injunction, the District Court disregarded the distin

between independent expenditures and coordinated expend

recognized in Buckley and its progeny. For that reason, GAB recomm

that the court reverse the District Court’s Decisions and Orders a

doing so clarify that purported independent groups have no absolute

Amendment right to engage in “coordinated issue advocacy” w



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ARGUMENT

Because the District Court first concluded that WCFG’s conduc

not subject to the regulations or statutes Defendants sought to enforce

brief initially addresses the Wisconsin statutes and regulations b

turning to the First Amendment issues which bear upon Defend

potential liability to WCFG under 42 U.S.C. § 1983.

I. EXPENDITURES FOR PURPOSES OTHER THAN EXPR

ADVOCACY CAN BE SUBJECT TO REGULATION UND

WISCONSIN LAW IF COORDINATED WITH A

CANDIDATE.

The District Court did not explain the basis for its conclusio

WCFG’s conduct was “not subject to the regulations or statute

defendants seek to enforce.” R. 181:12-13. In reaching that conclusio

District Court did not acknowledge contrary and indistinguis

Wisconsin case law. Nor did it acknowledge the opinions of the GAB

its predecessor, the Wisconsin State Elections Board (“SEB”),2 t

contrary.



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A. The Wisconsin Court of Appeals Concluded ThatCoordinated Conduct Not Involving Express Advoca

Can Be Treated As “Contributions” Under Wisconsin

Law.

In Wisconsin Coal. for Voter Participation, Inc. v. State Elec

Bd. (“Wisconsin Coalition”), 231 Wis. 2d 670, 605 N.W.2d 654 (Ct

1999), the Wisconsin

CRG Advocates v Chisholm Et Al - Complaint With Exhibits

Documents