Posted: March 24, 2016
March 23, 216
To: District Attorneys John Chisholm, Larry Nelson, Ismael Ozanne, and Assistant District Attorneys Bruce Landgraf and David Robles.
Dear District Attorneys and Assistant DAs,
I’m writing, first, to congratulate you for having the courage to join the John Doe II case and to work on an appeal of the horrendous Wisconsin Supreme Court ruling last July. I hope the U.S. Supreme Court will grant you cert.
Second, I’m writing to urge you to concentrate your appeal not on the recusal issue but on the grounds that the Wisconsin Supreme Court totally misread 40 years of U.S. Supreme Court precedent dealing with independent expenditures, and by extension, with coordination.
As you know, the Wisconsin Supreme Court said that the First Amendment prohibits the state of Wisconsin from imposing a ban on coordination between candidates and issue advocacy groups. But dating back to Buckley v. Valeo in 1976 and right on through Citizens United of 2010, the U.S. Supreme Court campaign finance decisions have been predicated on there being no coordination between candidates and issue advocacy groups.
In Buckley, the court ruled that expenditures by outside groups that are coordinated with candidates amount to campaign contributions. “The ultimate effect is the same as if the person had contributed the dollar amount to the candidate and the candidate had then used the contribution,” the court ruled. Such expenditures, it said, should be “treated as contributions rather than expenditures.”
Only the lack of coordination reduces the risk of corruption, the Court stressed in Buckley. “The absence of prearrangement and coordination of an expenditure with the candidate or his agent . . . alleviates the danger that expenditures will be given as a quid pro quo for improper commitments from the candidates.”
Even in its infamous Citizens United decision, which allowed independent groups to spend unlimited amounts of money, the U.S Supreme Court stressed that such groups had to be independent; they couldn’t coordinate with their favored candidates: “By definition, an independent expenditure is political speech presented to the electorate that is not coordinated with a candidate.”
The conservative majority on the Wisconsin Supreme Court simply – and wrongly – chose to ignore all of these precedents.
Here at the Wisconsin Democracy Campaign, we believe it is crucial that you prevail in the U.S. Supreme Court on this. Otherwise, it will be impossible – even with a more enlightened legislature and governor – to pass a law that prohibits coordination.
Unless the Wisconsin Supreme Court’s decision on coordination is overturned, it will perpetually mock the ability of the citizenry to impose meaningful limits on campaign donations, and it will render disclosure requirements equally meaningless. And it will be an open invitation to the kind of quid pro quo corruption that U.S. Supreme Court has ruled against time and time again.
Example: If I’m running for governor, the most I can ask my richest friend to give my campaign is now $20,000, and I have to disclose that gift. But I’m going to tell my billionaire friend, “Don’t be a chump. Don’t give me $20,000. Give $20 million to this outside group with one of those high-minded names like Badgers for Eternal Victory (BEV). Then I’ll tell BEV what ads to run, and where to run them, and how many times to run them, and it would be just as if you gave me the money directly, even though it’s 1,000 times the legal limit. And the kicker is: BEV doesn’t have to disclose that you gave it a dime!”
This absurdity cannot stand. Basically, it now says: The law, in its majesty, allows rich and poor alike to give millions of dollars to the candidates of their choice, in the dark.
Thank you for considering our views on this crucial issue.
And good luck with your appeal!