crg advocates v chisholm et al - complaint with exhibits
TRANSCRIPT
-
8/20/2019 CRG Advocates v Chisholm Et Al - Complaint With Exhibits
1/123
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
-
8/20/2019 CRG Advocates v Chisholm Et Al - Complaint With Exhibits
2/123
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
-
8/20/2019 CRG Advocates v Chisholm Et Al - Complaint With Exhibits
3/123
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
-
8/20/2019 CRG Advocates v Chisholm Et Al - Complaint With Exhibits
4/123
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.
-
8/20/2019 CRG Advocates v Chisholm Et Al - Complaint With Exhibits
5/123
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
-
8/20/2019 CRG Advocates v Chisholm Et Al - Complaint With Exhibits
6/123
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
-
8/20/2019 CRG Advocates v Chisholm Et Al - Complaint With Exhibits
7/123
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.
-
8/20/2019 CRG Advocates v Chisholm Et Al - Complaint With Exhibits
8/123
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
-
8/20/2019 CRG Advocates v Chisholm Et Al - Complaint With Exhibits
9/123
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
-
8/20/2019 CRG Advocates v Chisholm Et Al - Complaint With Exhibits
10/123
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.
-
8/20/2019 CRG Advocates v Chisholm Et Al - Complaint With Exhibits
11/123
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
-
8/20/2019 CRG Advocates v Chisholm Et Al - Complaint With Exhibits
12/123
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
-
8/20/2019 CRG Advocates v Chisholm Et Al - Complaint With Exhibits
13/123
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
-
8/20/2019 CRG Advocates v Chisholm Et Al - Complaint With Exhibits
14/123
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.
-
8/20/2019 CRG Advocates v Chisholm Et Al - Complaint With Exhibits
15/123
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
46. CRG repeats and re-alleges the allegations of Paragraphs 1–38.
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
-
8/20/2019 CRG Advocates v Chisholm Et Al - Complaint With Exhibits
16/123
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
51. CRG repeats and re-alleges the allegations of Paragraphs 1–38.
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
-
8/20/2019 CRG Advocates v Chisholm Et Al - Complaint With Exhibits
17/123
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
59. CRG repeats and re-alleges the allegations of Paragraphs 1–58.
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
-
8/20/2019 CRG Advocates v Chisholm Et Al - Complaint With Exhibits
18/123
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;
-
8/20/2019 CRG Advocates v Chisholm Et Al - Complaint With Exhibits
19/123
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
-
8/20/2019 CRG Advocates v Chisholm Et Al - Complaint With Exhibits
20/123
EXHIBIT A
-
8/20/2019 CRG Advocates v Chisholm Et Al - Complaint With Exhibits
21/123
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
-
8/20/2019 CRG Advocates v Chisholm Et Al - Complaint With Exhibits
22/123
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
-
8/20/2019 CRG Advocates v Chisholm Et Al - Complaint With Exhibits
23/123
Susan Armacost
William S. ReidJune 21, 2000
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.
-
8/20/2019 CRG Advocates v Chisholm Et Al - Complaint With Exhibits
24/123
Susan Armacost
William S. ReidJune 21, 2000
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)
-
8/20/2019 CRG Advocates v Chisholm Et Al - Complaint With Exhibits
25/123
Susan Armacost
William S. ReidJune 21, 2000
Page 5
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
-
8/20/2019 CRG Advocates v Chisholm Et Al - Complaint With Exhibits
26/123
Susan Armacost
William S. ReidJune 21, 2000
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
-
8/20/2019 CRG Advocates v Chisholm Et Al - Complaint With Exhibits
27/123
Susan Armacost
William S. ReidJune 21, 2000
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
-
8/20/2019 CRG Advocates v Chisholm Et Al - Complaint With Exhibits
28/123
Susan Armacost
William S. ReidJune 21, 2000
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
Susan Armacost
-
8/20/2019 CRG Advocates v Chisholm Et Al - Complaint With Exhibits
29/123
Susan Armacost
William S. ReidJune 21, 2000
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
Susan Armacost
-
8/20/2019 CRG Advocates v Chisholm Et Al - Complaint With Exhibits
30/123
Susan Armacost
William S. ReidJune 21, 2000
Page 10
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
Susan Armacost
-
8/20/2019 CRG Advocates v Chisholm Et Al - Complaint With Exhibits
31/123
Susan Armacost
William S. ReidJune 21, 2000
Page 11
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.
Susan Armacost
-
8/20/2019 CRG Advocates v Chisholm Et Al - Complaint With Exhibits
32/123
William S. ReidJune 21, 2000
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
Susan Armacost
-
8/20/2019 CRG Advocates v Chisholm Et Al - Complaint With Exhibits
33/123
William S. ReidJune 21, 2000
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
Susan Armacost
-
8/20/2019 CRG Advocates v Chisholm Et Al - Complaint With Exhibits
34/123
William S. ReidJune 21, 2000
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
Susan Armacost
Willi S R id
-
8/20/2019 CRG Advocates v Chisholm Et Al - Complaint With Exhibits
35/123
William S. ReidJune 21, 2000
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
Susan Armacost
William S Reid
-
8/20/2019 CRG Advocates v Chisholm Et Al - Complaint With Exhibits
36/123
William S. ReidJune 21, 2000
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
-
8/20/2019 CRG Advocates v Chisholm Et Al - Complaint With Exhibits
37/123
EXHIBIT B
Case: 14-1822 Document: 117 Filed: 08/27/2014 Page
-
8/20/2019 CRG Advocates v Chisholm Et Al - Complaint With Exhibits
38/123
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
Case: 14-1822 Document: 117 Filed: 08/27/2014 Page
-
8/20/2019 CRG Advocates v Chisholm Et Al - Complaint With Exhibits
39/123
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
Case: 14-1822 Document: 117 Filed: 08/27/2014 Page
-
8/20/2019 CRG Advocates v Chisholm Et Al - Complaint With Exhibits
40/123
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
Case: 14-1822 Document: 117 Filed: 08/27/2014 Page
-
8/20/2019 CRG Advocates v Chisholm Et Al - Complaint With Exhibits
41/123
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 ...............................................................
Case: 14-1822 Document: 117 Filed: 08/27/2014 Page
-
8/20/2019 CRG Advocates v Chisholm Et Al - Complaint With Exhibits
42/123
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
Case: 14-1822 Document: 117 Filed: 08/27/2014 Page
-
8/20/2019 CRG Advocates v Chisholm Et Al - Complaint With Exhibits
43/123
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
Case: 14-1822 Document: 117 Filed: 08/27/2014 Page
-
8/20/2019 CRG Advocates v Chisholm Et Al - Complaint With Exhibits
44/123
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-
Case: 14-1822 Document: 117 Filed: 08/27/2014 Page
-
8/20/2019 CRG Advocates v Chisholm Et Al - Complaint With Exhibits
45/123
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
Case: 14-1822 Document: 117 Filed: 08/27/2014 Page
-
8/20/2019 CRG Advocates v Chisholm Et Al - Complaint With Exhibits
46/123
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.
Case: 14-1822 Document: 117 Filed: 08/27/2014 Page
-
8/20/2019 CRG Advocates v Chisholm Et Al - Complaint With Exhibits
47/123
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
Case: 14-1822 Document: 117 Filed: 08/27/2014 Page
-
8/20/2019 CRG Advocates v Chisholm Et Al - Complaint With Exhibits
48/123
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
Case: 14-1822 Document: 117 Filed: 08/27/2014 Page
-
8/20/2019 CRG Advocates v Chisholm Et Al - Complaint With Exhibits
49/123
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.
Case: 14-1822 Document: 117 Filed: 08/27/2014 Page
-
8/20/2019 CRG Advocates v Chisholm Et Al - Complaint With Exhibits
50/123
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