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Appeals Court declares portions of Wisconsin campaign finance law unconstitutional

By   /   May 14, 2014  /   No Comments

Part 60 of 250 in the series Wisconsin's Secret War
AP file photo

SOME OF THE PLAYERS: Wisconsin Government Accountability Board Director Kevin Kennedy, left, Milwaukee District Attorney John Chisholm, and Milwaukee County Assistant District Attorney Bruce Landgraf have been pivotal players in the John Doe investigation.


By M.D. Kittle | Wisconsin Reporter

Madison, Wis. — In a ruling with stunning implications on political speech in Wisconsin and beyond, the 7th Circuit U.S. Court of Appeals declared unconstitutional portions of state campaign finance laws restricting issue advertising.

The 88-page decision handed down late Wednesday sides with Wisconsin Right to Life Inc. and its state political action committee, which sued to block the enforcement of multiple state statutes and rules against groups that spend money for political speech independently of candidates and parties — so called issue advocacy groups.


UNCONSTITUTIONAL: The 7th Circuit U.S. Court of Appeals has declared major sections of Wisconsin’s campaign finance law unconstitutional. The decision could have major implications on Wisconsin’s secret John Doe probe into dozens of conservative groups.

The 7th Circuit’s ruling, legal experts tell Wisconsin Reporter, could cut the legs out from under a secret John Doe investigation into dozens of conservative organizations on a theory that the groups illegally coordinated with Gov. Scott Walker’s campaign during the state’s partisan recall elections.

In short, the court, in a 3-0 decision, found the state’s corporate-speech ban, the ban on political spending by corporations, unconstitutional under the U.S. Supreme Court’s 2010 Citizens United ruling that opened up previous restrictions on campaign finance. The Appeals Court remanded the case to the district court to issue a permanent injunction consistent with the opinion.

The court also ruled:

  • The cap on the amount a corporation may spend on fundraising for an affiliated political committee, is unconstitutional.
  •  The lengthy disclaimer requirement under state Government Accountability Board’s regulation is unconstitutional as applied to 30-second radio ads and ads of shorter duration.
  • The statutory definition of “political purposes,” section 11.01(16), and the regulatory definition of “political committee,” GAB § 1.28(1)(a), are unconstitutionally vague and overbroad in the sense meant by federal court precedent. As applied to political speakers other than candidates, their campaign committees and political parties, the definitions are limited to express advocacy.
AP photo

NOT GOOD: U.S. District Court Judge Rudolph Randa shut down the John Doe investigation, asserting that the prosecutors’ application of the law was “simply wrong.”

And that’s where the John Doe investigation may come under further scrutiny.

The probe, launched in August 2012 by Milwaukee County District Attorney John Chisholm, a Democrat, and involving the Government Accountability Board, the state’s campaign and elections watchdog, is the subject of a federal lawsuit filed by conservative activist Eric O’Keefe and his Wisconsin Club for Growth.

Last week, U.S. District Court Judge Rudolph Randa shut down the probe, asserting that the prosecutors’ application of the law was “simply wrong.” His ruling seems to agree with an earlier decision by John Doe presiding Judge Gregory A. Peterson, who earlier this year quashed several subpoenas sought by prosecutors because they had failed to show probable cause.

Randa’s decision is now being appealed before the 7th Circuit.

O’Keefe’s lawsuit contends that the John Doe investigation, featuring what sources have described as “paramilitary” pre-dawn raids on the homes and offices of several conservatives, has violated conservatives’ First Amendment rights. Beyond that, the lawsuit  asserts the prosecutors have no understanding of campaign finance law or have effectively made it up as they’ve gone along.

The prosecutors’ theory reportedly attempts to merge issue advocacy, which does not support or oppose a particular candidate, with express advocacy, which directly supports or opposes a candidate.

As Randa pointed out, there is no evidence to suggest the plaintiffs engaged in express advocacy, which comes with particular prohibitions on campaign coordination.

The Appeals Court in its ruling states a GAB rule that treats issue advocacy during the 30/60-day pre-election period as “fully regulable express advocacy if it mentions a candidate, is unconstitutional.”

“Similarly, GAB § 1.91, which imposes PAClike registration, reporting, and other requirements on all organizations that make independent disbursements, is unconstitutional as applied to organizations not engaged in express advocacy as their major purpose,” the court wrote.

That is precisely where the prosecutors in the John Doe appear to hang their legal hat.

Wisconsin Club for Growth previously took on the campaign finance regulations and won.

The club and an unlikely ally, liberal advocacy group One Wisconsin Now, also filed a lawsuit challenging the rules in federal court in Madison.

In 2010, the GAB agreed not to enforce several provisions of its rules, including its demand that the groups disclose their donors.

Wednesday’s ruling seems to further cement protections for anonymous speech under the First Amendment.

O’Keefe’s civil rights lawsuit may test again whether GAB and the John Doe prosecutors have failed to follow through on GAB’s end of the bargain.

An attorney for Wisconsin Right to Life and its PAC declined to comment on Wednesday, saying he was still digesting the court ruling.

A spokesman for the Government Accountability Board did not immediately return an email seeking comment.

Contact M.D. Kittle at mkittle@watchdog.org

Part of 250 in the series Wisconsin's Secret War
  1. So what are the odds the Wisconsin Supreme Court will stay its John Doe ruling?
  2. Sources: Secret probe targeting conservatives is abuse of prosecutorial powers
  3. Scary! Phantom prosecutor in Dems’ war on conservatives disappears inside courthouse
  4. EXCLUSIVE: Judge in Democrat-led John Doe probe recuses herself
  5. Democrats’ ‘intelligence-gathering’ spreads in Wisconsin
  6. Democrats tap anti-terror expert to head secret probe of Wisconsin conservatives
  7. Sheriff Clarke: John Doe case shows Milwaukee DA is ‘weaponized for political purposes’
  8. Clarke: John Doe into conservatives ‘unbridled,’ ‘dangerous’ and ‘tainted’
  9. Sources: New judge named in Democrat-led secret probe
  10. Vendetta justice? Criticism growing about John Doe prosecutor Bruce Landgraf
  11. Will Wisconsin’s own ‘Miserable’ inspector jail conservative activist for speaking out about Dem probe?
  12. Conservative targets bring in big guns to Democrat-led John Doe fight
  13. ‘Dangerous’ game: Former FEC official blasts Democrats’ secret investigation of conservative groups
  14. Center for Media and Democracy: Liberals are morally superior
  15. Wisconsin Dems suddenly support political investigations
  16. WI Republican attorney general to represent judges in Democrat-led John Doe probe
  17. Republicans speak out about silent John Doe targeting conservatives
  18. Biggest secret in John Doe may be just how judges and special prosecutors are selected
  19. WSJ: John Doe judge deals body blow to secret probe targeting conservatives
  20. Vos: Wait until John Doe in ‘rearview mirror’ before revisiting law
  21. Lawsuits looming in Wisconsin’s crumbling John Doe probe?
  22. Conservative to Democrat prosecutors: Shut down secret political probe or face civil rights lawsuit
  23. John Doe target O’Keefe taking on IRS, too
  24. Lawmaker: Wisconsin’s John Doe like Christie’s ‘Bridgegate’
  25. Target files civil rights lawsuit against Wisconsin’s John Doe prosecutors
  26. Disparate treatment: Civil rights lawsuit claims conservative speech trampled
  27. Liberal group looking to take Wisconsin’s John Doe national
  28. John Doe judge: ‘Results of the John Doe speak for themselves’
  29. John Doe special prosecutor appeals judge’s ruling quashing subpoenas
  30. John Doe prosecutor pushed for brain-damaged man’s conviction in ATF debacle
  31. Conservatives counterpunch John Doe prosecutors’ move to stall injunction
  32. Shadowy John Doe investigator invokes federalism in civil rights lawsuit
  33. John Doe prosecutors wanted higher-priced lawyers, source says
  34. Secret agent Dean Nickel’s defense: ‘Dean Nickel is not responsible’
  35. D’oh! John Doe prosecutors claim secrecy protection – after filing secret documents
  36. Recusal in John Doe case raises questions of fairness, purpose
  37. Absolute immunity makes it tough to prosecute the prosecutors of John Doe
  38. Poll suggests Dems’ big ‘secret’ weapon against Walker is backfiring
  39. ‘Easy target’: Kelly Rindfleisch breaks silence about John Doe probe
  40. SCOTUS ruling on campaign finance shows abuse of John Doe, targets say
  41. Nobody will say what John Doe’s shadow man did, but taxpayers are paying his legal bill
  42. Judge denies John Doe prosecutors’ move to dismiss civil rights suit
  43. Civil rights expert: John Doe law is ‘un-American,’ like something from ‘Nazi Germany’
  44. Target: John Doe prosecutors making up campaign law as they go along
  45. John Doe, as it is being used, must go, WI senator says
  46. John Doe target says prosecutors latest move another delay tactic
  47. John Doe prosecutors sound defensive in latest court filings
  48. Federal judge denies John Doe prosecutors’ motion to stall civil rights case
  49. Media coalition asks judge to open sealed John Doe documents
  50. Are John Doe prosecutors sweating out federal judge’s decision?
  51. John Doe is dead: Judge stops WI prosecutors’ probe into conservatives
  52. This is what the Fourth Amendment looks like?
  53. What’s next for now-defunct John Doe probe?
  54. Appeals court stalls judge’s order halting John Doe probe
  55. Federal judge’s ruling could open up sealed John Doe records
  56. Federal judge orders John Doe probe shut down again
  57. Lawmakers call for review of GAB’s secret John Doe activities, funds
  58. Lawyers, lawyers everywhere and other dispatches from John Doe Land
  59. Secret’s out: The world is beginning to learn more about WI’s John Doe
  60. Still their little secret? Questions remain on John Doe gag order
  61. Appeals Court declares portions of Wisconsin campaign finance law unconstitutional
  62. John Doe prosecutors suddenly support opening sealed court records
  63. Expert: It’s as if GAB decided ‘Citizens United didn’t exist’
  64. John Doe prosecutors voice phony outrage, legal source says
  65. GAB still reviewing court ruling declaring WI campaign finance law unconstitutional
  66. State Farm still doesn’t want to cover John Doe prosecutor’s legal bills
  67. For the Walker-hating left, John Doe is ‘Mission Accomplished’
  68. Sources: No urgency in WI Supreme Court on John Doe
  69. Would Walker settlement with John Doe prosecutors be a deal with the devil?
  70. Contempt questions surround reported John Doe deal talks
  71. Walker’s John Doe response raises more questions than answers
  72. Sources: Attorney General passes on defending GAB in John Doe cases
  73. Attorney to judge: Don’t let John Doe prosecutor ‘moot’ injunction
  74. John Doe targets sue Wisconsin’s Government Accountability Board
  75. Federal judge says his order halting John Doe probe should be clear to prosecutor
  76. John Doe special prosecutor’s bill still shrouded in secrecy
  77. ‘Are these kind of armed pre-dawn raids standard operating procedure?’
  78. John Doe special prosecutor obeys judge’s order
  79. ‘Never-ending’ John Doe never ended, WSJ reports
  80. Appeals court upholds judge’s order shutting down John Doe probe
  81. O’Keefe keeps collecting big wins in John Doe lawsuit
  82. John Doe I judge says he’s not responsible for John Doe II
  83. Will taxpayers have to pay for frivolity of John Doe prosecutors?
  84. John Doe prosecutors jump back into the dark?
  85. What about those prosecutors? Questions surround other John Doe DAs
  86. Humiliated in court, WI Dems take their anti-conservative John Doe probe to the media
  87. Federal judge blasts John Doe prosecutors – again – as he denies records release
  88. Right on cue: Document dump fuels anti-Walker donation drive
  89. Wall Street Journal points out ‘disgrace’ of mainstream John Doe reporting
  90. Expert: John Doe raids raise ‘troubling’ Fourth Amendment questions
  91. Kelly Rindfleisch tells conservatives, ‘Don’t back down’
  92. Mainstream media forced to walk back Walker ‘criminal scheme’ narrative
  93. John Doe prosecutors engaged in premature justification, conservatives say
  94. Is John Doe probe a case of a mini NSA in Wisconsin?
  95. AG opinion means accountability board’s John Doe secrets are safe — for now
  96. Senator asks attorney general to compel GAB to open up its books
  97. GAB now playing secrets in state John Doe lawsuit
  98. Will John Doe prosecutors launch lengthy probe against Trek Bicycle?
  99. John Doe prosecutors engaged in war of words — lots and lots of words
  100. Judge denies conservatives’ request to add GAB to civil rights lawsuit
  101. Oral arguments set in John Doe prosecutors’ appeal
  102. In John Doe Land, the left doesn’t illegally coordinate
  103. John Doe document blitz must have broken mainstream media’s heart
  104. Senator: Looks like accountability board is hiding something
  105. Kelly Rindfleisch appeal to test validity of John Doe digital searches
  106. Conservatives in John Doe battle know disclosure comes with a heavy price
  107. Appeals court orders release of some John Doe documents
  108. Taxpayers on the hook up to $25,000 for GAB’s legal maneuvers
  109. Overheated media erroneously bring back Walker ‘criminal scheme’ theme
  110. ‘Retaliation’: Docs show state prosecutors launched mini-NSA probe of WI conservatives
  111. John Doe prosecutors take desperate, unethical slap
  112. Walker ‘smoking gun’ story has tiny glaring flaw
  113. Wisconsin prosecutors aim to shut down conservatives
  114. Conservatives appeal to common sense in John Doe appeals case
  115. Conservatives say ‘incorrect disclosure’ of John Doe docs no ‘tiny error’
  116. First Amendment big guns back targets of John Doe probe
  117. Was John Doe judge a rubber stamp?
  118. $25,000 and counting: WI taxpayers’ bill so far to defend GAB and its ‘monster’
  119. Another blow for Wisconsin’s restrictive campaign finance law
  120. Wisconsin prosecutors appeal for protection from blowback in partisan probe
  121. Is John Doe story colored with a bit of ‘Macbeth?’
  122. GAB director says agency just following the law in John Doe probe
  123. Kelly Rindfleisch: Where are the tears for the kids the Milwaukee school system failed?
  124. Rindfleisch attorney: Appeals court can protect the Fourth Amendment in Digital Age
  125. Source: Wisconsin Supreme Court doesn’t want political heat of John Doe case
  126. Appeals court reverses John Doe injunction, but Wisconsin’s secret war far from over
  127. A whistleblower’s story: Taking on a ‘hyper-partisan’ district attorney
  128. Conservative O’Keefe seeks investigation into John Chisholm and his John Doe
  129. Who’s paying the bill? Report casts questions on GAB and John Doe payments
  130. Target of secret John Doe probe is fighting back and speaking out
  131. The day John Doe rushed through the door
  132. Rindfleisch: ‘Rape’ not too strong a word for how violated John Doe targets feel
  133. Conservative group asks court to stop John Doe ‘constitutional injury’
  134. Conservatives to appeals court: ‘You don’t know Doe’
  135. Armed and growing: Milwaukee County DA beefs up his ‘police force’
  136. Federal judge stops John Doe prosecutors from bothering conservative group
  137. Wisconsin Supreme Court takes another pass on John Doe case
  138. No surprise: Bice buries the lead, Walker follows the law
  139. Federalism v. individual rights: A conversation with Eric O’Keefe
  140. Report: No district attorney will investigate District Attorney John Chisholm
  141. Appeals court denies request to rehear John Doe civil rights case
  142. Voters say ‘yes’ to Walker, ‘no’ to John Doe, law expert says
  143. Vos: There will be reforms to John Doe, GAB
  144. GAB, Milwaukee County DA bail on key provision behind war on conservatives
  145. John Doe lawsuit could be headed to U.S. Supreme Court
  146. Kelly Rindfleisch will fight on in Fourth Amendment case
  147. John Doe froze conservative speech, targets say
  148. Conservatives to court: Open up records on GAB’s role in John Doe
  149. Did the GAB doctor documents to cover their tracks in John Doe?
  150. Wisconsin’s Van Hollen says goodbye to AG post, John Doe
  151. Rindfleisch appeals to Supreme Court in John Doe Fourth Amendment abuse case
  152. Audit: GAB has failed to follow the law
  153. Wisconsin Supreme Court to take up John Doe complaints
  154. ‘R word’ surfaces in wake of state Supreme Court taking up John Doe challenges
  155. GAB won’t say whether it has reauthorized its role in John Doe probe
  156. Rogue agency defied judges to carry out partisan probe of Wisconsin conservatives
  157. ‘Outside the … law’: Lawmakers call for investigation of GAB
  158. Attorney: GAB’s John Doe justifications don’t hold up to law
  159. Isn’t it ironic: Mainstream silence follows reports of secret GAB Gmail in John Doe
  160. GAB offers contradictory defense of its John Doe activities
  161. O’Keefe officially asks judge to open probe into John ‘Doe’ Chisholm
  162. State lawmakers look to investigate the GAB and its investigators
  163. One year ago, judge’s ruling shakes up John Doe probe
  164. Doe possessed: ‘They have information about every aspect of our lives’
  165. GAB plays victim card in ‘complicated’ John Doe, campaign finance farce
  166. Public defender asks Supreme Court to take up John Doe-related Fourth Amendment case
  167. GAB has a sudden change of heart on campaign finance reform
  168. O’Keefe takes his case against John Doe to U.S. Supreme Court
  169. Conservatives: GAB’s meeting minutes show gap in board’s John Doe oversight
  170. How Wisconsin media support DA’s war on conservatives
  171. Federal judge’s judgment takes John Doe probe off life support
  172. Following judge’s order killing John Doe, what’s next?
  173. First Amendment expert: Wisconsin ought to be ’embarrassed’ by John Doe
  174. Does chief justice have conflict of interest in John Doe case?
  175. Conservative groups ask U.S. Supreme Court to defend rights of John Doe targets
  176. Is John Doe special prosecutor still working with partisan DA, GAB?
  177. Prosecutor misstatements continue to shape John Doe narrative, Walker’s future
  178. $775,000 and rising — Wisconsin taxpayers’ bill to defend John Doe prosecutors
  179. Milwaukee DA to be ‘special guest’ at fundraiser for Supreme Court justice
  180. John Doe reform bill aims to break silence of abusive investigations
  181. Reform bill would open up the John Doe books to taxpayers
  182. John Doe target says they are the victim of identity theft
  183. On Sunshine Week, GAB still operating in the dark
  184. Wisconsin Supreme Court rejects Rindfleisch Fourth Amendment appeal
  185. Secretive John Doe special prosecutor who fancies a good leak screams secrecy breach
  186. Kelly Rindfleisch hopes to avoid becoming first John Doe political prisoner
  187. GAB, friend of the John Doe, just wants to be a ‘friend of the court’
  188. Kelly Rindfleisch, Chisholm’s political prize, to begin sentence on Thursday
  189. U.S. Supreme Court could soon decide whether to take John Doe Case
  190. Did chief justice show her hand in dissenting John Doe opinion?
  191. New documents expose GAB’s ‘parallel’ probe expenditures
  192. Lawmaker: Chief justice’s civil rights complaint is ‘pathetic’
  193. John Doe reform bill stalls in Legislature
  194. Who was the reporter outside Cindy Archer’s house?
  195. U.S. Supreme Court to consider hearing John Doe-related case
  196. Experts: Chances rise that U.S. Supreme Court will take John Doe case
  197. Do Chisholm’s public comments on John Doe cross ethical line?
  198. John Chisholm’s 50 shades of ‘raid’
  199. Five years later: America just learning ‘tyrannical’ secrets of Wisconsin’s John Doe
  200. U.S. Supreme Court could announce decision on John Doe case later this month
  201. Wisconsin as a New Yorker cartoon of itself
  202. Will discovery reveal more bombshell information about ‘rogue’ GAB?
  203. Political prisoner Kelly Rindfleisch on home confinement, working for O’Keefe
  204. Warrants command John Doe targets to remain silent
  205. U.S. Supreme Court denies review of John Doe-related case
  206. Was John Chisholm John Doe distracted?
  207. John Doe reform bill stuck in legislative waiting game
  208. GAB reform stalled, new docs show GAB working closely with John Doe prosecutors
  209. Kelly Rindfleisch takes her Fourth Amendment fight to the U.S. Supreme Court
  210. What happened to Kelly Rindfleisch could happen to you
  211. Justice asks state Supreme Court to reconsider Rindfleisch Fourth Amendment appeal
  212. Justice Gableman: Warrants in Rindfleisch case amount to ‘fishing expedition’
  213. ‘Did they get me?’: Docs reveal long-time John Doe spying operation
  214. Kelly Rindfleisch: ‘I fear I will never get justice’
  215. Former Walker aide to file civil rights lawsuit against John Doe prosecutor
  216. Cindy Archer: Chisholm’s John Doe was ‘campaign of intimidation’
  217. National Review: Political John Doe victimized 16-year-old boy
  218. GAB’s Kennedy had a friend in IRS’ Lois Lerner
  219. Vos: Time to ‘double down’ on GAB reform in wake of reported IRS links
  220. Left’s loud transparency defenders silent on secret John Doe
  221. The John Doe investigation might finally be over; Supreme Court to rule Thursday
  222. Wisconsin Supreme Court shuts down John Doe investigation
  223. Wisconsin Supreme Court shuts down John Doe investigation, affirms First Amendment
  224. Kelly Rindfleisch seeks release following death of John Doe probe
  225. Legal experts on right and left seek review of Rindfleisch John Doe conviction
  226. John Doe horror stories: ‘I felt completely helpless in my own home’
  227. Hillary Clinton plays victim card
  228. Legal expert: Abrahamson and John Doe civil rights cases like day and night
  229. Attorney: audio confirms traumatic John Doe raid of Cindy Archer’s home
  230. John Doe prosecutors open new assault on conservative targets
  231. John Doe prosecutors’ tape of raid raises questions about missing moments
  232. John Doe reform bill starts to move again
  233. Conservatives ask Abrahamson to turn over John Doe-related records
  234. John Doe investigators say there are more tapes of raids
  235. Legal defense of rogue John Doe agents costs taxpayers nearly $1.2 million
  236. Explosive email exposes GAB attorney’s partisan motives in John Doe probe
  237. An open letter to the Milwaukee Journal Sentinel’s Patrick Marley
  238. Wisconsin GAB reform bill could be ready in a few weeks, sources say
  239. Updated complaint shines more light on dark day in John Doe
  240. Partisan Falk once urged GAB to ‘get around constitutional right to free speech’
  241. Legislature to take up John Doe reform in October, GOP leadership says
  242. Knudson on GAB: ‘We need to take this thing apart’
  243. Did the GAB ‘illegally coordinate’ with left-leaning groups?
  244. John Doe prosecutors get a win, practice legal gymnastics again
  245. Wall Street Journal: GAB targeted conservative justices in John Doe defense
  246. Craig says bill to investigate GAB’s John Doe activities coming soon
  247. New emails show GAB assisting in John Doe defense after judge said stop
  248. ‘Nonpartisan’ GAB staff has partisan past
  249. John Doe political prisoner Kelly Rindfleisch nears end of her sentence
  250. Will the voices of the John Doe victims be heard?


M.D. Kittle is national First Amendment reporter at Watchdog.org. Contact him at mkittle@watchdog.org.