Today, the United States Supreme Court summarily affirmed the decision of a Three Judge Panel of the U.S. District Court for the District of Columbia in Independence Institute v. Federal Election Commission. By affirming the panel in this case, the U.S. Supreme Court seriously undermined the legal rationale that the Wisconsin Supreme Court relied upon when it dismissed the John Doe investigation into possible illegal campaign coordination during the Governor Walker Recall Election. In one sense, today’s action by the U.S. Supreme Court merely establishes the narrow rule that “electioneering activity,” which encompasses a variety of activity beyond express advocacy on behalf of a candidate for office, is subject to regulation without violating the U.S. Constitution.
However, the action of the U.S. Supreme Court is significant because it also necessarily rejects a converse proposition: that the scope of permissible government regulation of election activity is limited to conduct which constitutes “express advocacy.” The Independence Institute case is relevant to the John Doe Investigation because both cases raise the legal question of whether the U.S. Constitution permits any regulation of election activity other than “express advocacy” or its functional equivalent. “Express advocacy” is usually defined as a communication that expressly advocates for the election or defeat of a clearly identified candidate.
The Independence Institute is a nonprofit organization. It challenged disclosure requirements contained in the McCain-Feingold Act which would have required it to disclose its donors if it spent more than $10,000 on “electioneering communications” in the 60 days before a general election (or the 30 days before a primary election). The group argued that this statutory requirement was unconstitutional because it went beyond the regulation of express advocacy. As described by Judge Wilkins in an earlier proceeding in the D.C. Circuit, the argument of the Independence Institute reduced to the argument that “the only speech that should be considered an electioneering communication, and therefore trigger the BCRA’s reporting and disclosure requirements, is speech that is ‘unambiguously related’ to a campaign.” The group wanted the Court to rule that the disclosure requirement in the statute could only be enforced in instances involving express advocacy.
If this sounds familiar, it is because the legal argument advanced by the Independence Institute is parallel to the reasoning adopted by the Wisconsin Supreme Court in its opinion ending the John Doe Investigation (State ex rel. Two Unnamed Petitioners v. Peterson, 2015 WI 85). In that case, the Wisconsin Supreme Court held that the First Amendment required the Wisconsin statutes prohibiting independent groups from coordinating with candidate campaign committees to be read in a manner that limited their enforcement to the policing of express advocacy:
[W]e hold that the definition of “political purposes” in Wis. Stat. § 11.01(16) is unconstitutionally overbroad and vague under the First Amendment to the United States Constitution and Article 1, Section 3 of the Wisconsin Constitution because its language “‘is so sweeping that its sanctions may be applied to constitutionally protected conduct which the state is not permitted to regulate.'” . . . . However, a readily available limiting construction exists that we will apply and that will prevent the chilling of otherwise protected speech; namely, “political purposes” is limited to express advocacy and its functional equivalent as those terms are defined in Buckley v. Valeo, 424 U.S. 1 (1976), and Fed. Election Comm’n v. Wis. Right to Life, Inc., 551 U.S. 449 (2007) . . . With this limiting construction in place, Chapter 11 does not proscribe any of the alleged conduct of any of the Unnamed Movants. The special prosecutor has not alleged any express advocacy, and issue advocacy, whether coordinated or not, is “beyond the reach of [Ch. 11].” . . . Accordingly, we invalidate the special prosecutor’s theory of the case, and we grant the relief requested by the Unnamed Movants. . . . To be clear, this conclusion ends the John Doe investigation because the special prosecutor’s legal theory is unsupported in either reason or law. Consequently, the investigation is closed. (emphasis added) (citations omitted) (2015 WI 85, para. 10-11)
In other words, the Wisconsin Supreme Court held that it violates the First Amendment to prevent political candidates from coordinating with outside spending groups in situations where the outside group does not expressly advocate the election or defeat of a candidate. The rationale offered in support of this holding was that U.S. Supreme Court precedent had limited the scope of permissible campaign finance regulation to the regulation of express advocacy, and that regulation of conduct outside of that scope (such as issue advocacy) therefore ran afoul of the First Amendment. Critics of the Wisconsin Supreme Court’s opinion were quick to point out that U.S. Supreme Court precedent does not stand for any such proposition, and that the contention by the Wisconsin Supreme Court that the John Doe prosecutor’s case was “unsupported in either reason or law” was clearly incorrect.
If there was any doubt that the Wisconsin Supreme Court’s reasoning was suspect, that doubt was dispelled by today’s action by the U.S. Supreme Court.
Today’s action summarily affirmed the decision of a Three Judge Panel of the U.S. District Court for the District of Columbia. The panel’s decision rejected the argument of the Independence Institute that the law at issue should be limited to express advocacy and that the law should be interpreted in such a way that issue advocacy was permitted to go unregulated. The panel explained:
[T]he Supreme Court and every court of appeals to consider the question have already largely, if not completely, closed the door to the Institute’s argument that the constitutionality of a disclosure provision turns on the content of the advocacy accompanying an explicit reference to an electoral candidate. In McConnell, the Supreme Court concluded that First Amendment precedent “amply supports application of [the Act’s] disclosure requirements to the entire range of `electioneering communications.‘” . . . In so doing, the Court specifically “rejected the notion that the First Amendment requires Congress to treat so-called issue advocacy differently from express advocacy[.]” . . . Likewise, in Citizens United, the Supreme Court ruled that advocacy — even if it takes the form of commercial speech — falls within the constitutional bounds of the donor-disclosure rule precisely because that advocacy points a finger at an electoral candidate. . . .
Under McConnell and Citizens United, then, it is the tying of an identified candidate to an issue or message that justifies the Bipartisan Campaign Reform Act’s tailored disclosure requirement because that linkage gives rise to the voting public’s informational interest in knowing “who is speaking about a candidate shortly before an election.” . . . Indeed, it is telling that, in defining a “genuine issue ad” in Wisconsin Right to Life, the Supreme Court stated that such an advertisement would not “mention * * * candidacy” or a “challenger.” Accordingly, it is hard to see any constitutional daylight between the Institute’s issue advertisement and the issue advocacy to which the Supreme Court has already held that the Act’s disclosure requirements can permissibly be applied.” (emphasis added) (citations omitted)
In summary, the panel stated exactly what the critics of the Peterson John Doe decision have said all along: there is simply no support for the argument that the U.S. Constitution limits campaign finance regulation to rules addressing express advocacy. If anything, the reasoning of the D.C. Circuit in Independence Institute strengthens the legal argument of the special prosecutor in the John Doe proceeding. If the requirement to disclose the identities of donors who support issue advocacy groups is constitutional, because of the public interest in knowing who is speaking about a candidate shortly before an election, then a requirement that prohibits coordination between issue advocacy groups and candidate campaigns must also be constitutional because it advances the very same public interest. By affirming the decision of the Three Judge Panel, the U.S. Supreme Court has raised more questions about the reasoning which the Wisconsin Supreme Court used to resolve the John Doe Investigation.