Wisconsin Supreme Court Urged to Affirm Constitutionality of State Restrictions on Coordinated Spending in John Doe Case

Democracy 21 joined the Campaign Legal Center, Common Cause in Wisconsin and the League of Women Voters of Wisconsin in submitting an amici brief to the Wisconsin Supreme Court, to be filed upon leave of the court, in Three Unnamed Petitioners v. Peterson.  The brief urges the court to find Wisconsin’s restrictions on the coordination of expenditures between candidates and outside groups constitutional.  The consolidated case centers around a challenge to a so-called John Doe investigation of alleged illegal coordination between the campaign of Wisconsin Governor Scott Walker and outside groups.  That investigation has been halted until various challenges are resolved.

The court is considering the argument that if coordinated expenditures do not expressly advocate the election or defeat of candidates, then they cannot be subject to regulation or limitation.  The U.S. Supreme Court specifically rejected that argument in McConnell v. FEC, holding that “there is no reason why Congress may not treat coordinated disbursements for electioneering communications,” i.e., a form of non-express advocacy, “in the same way it treats all other coordinated expenditures.”

“When an outside spender coordinates its spending with a candidate, that’s a contribution to the candidate,” said Don Simon, counsel to Democracy 21. And the U.S. Supreme Court has made clear that such outside spending does not have to contain words of express advocacy in order to be treated as a contribution.  The Wisconsin Supreme Court should uphold the state law here, which is consistent with the First Amendment rulings of the U.S. Supreme Court on the issue of coordinated spending.”

The Legal Center was assisted in the filing of the amici brief by Susan Crawford of Cullen Weston Pines & Bach LLP.