A Dose of Sanity from the Seventh Circuit in O’Keefe v. Chisholm
Four months ago, a federal district judge in Wisconsin abruptly halted a long-running state investigation into alleged coordination between Governor Scott Walker’s recall campaign and a number of supposedly “independent” outside groups. Whatever one thinks about the wisdom of that investigation, Judge Rudolph Randa’s decision was a striking instance of judicial chutzpah. Thankfully, a panel of the United States Court of Appeals for the Seventh Circuit has now restored a modicum of sanity.
In his ideologically-laced opinion, Judge Randa announced that outside groups have a constitutional right to coordinate unlimited “issue” advocacy with candidates in the run-up to elections. In other words, while an ad that says “Defeat Senator Jones because he doesn’t stand with the troops” cannot be coordinated, one that says “Call Senator Jones and tell him to stop hurting the troops” can be. Such a rule would enable easy circumvention of most remaining campaign finance laws. That, Judge Randa admitted, is precisely the point: he believes such circumvention is a constitutional right.
As the Brennan Center argued in an amicus brief filed with the Seventh Circuit, Judge Randa’s view is simply not the law. In fact, his reasoning runs contrary to almost forty years of Supreme Court precedent, including Citizens United. Yet Judge Randa not only broke new ground, he actually claimed that his interpretation of the law was already “clearly established” – and thus Wisconsin officials could be held personally liable for pursuing a “bad faith” investigation.
The Seventh Circuit made short work of this reasoning. After oral argument, few of us expected the court of appeals to pass on the ultimate constitutionality of Wisconsin’s coordination law. But the appellate court did affirm that “[n]o opinion issued by the Supreme Court, or by any court of appeals, establishes (‘clearly’ or otherwise) that the First Amendment forbids regulation of coordination between campaign committees and issue-advocacy groups—let alone that the First Amendment forbids even an inquiry into that topic.” In short, there can be no basis to hold state officials liable for simply doing their jobs.
According to the Seventh Circuit, whether the Walker investigation should continue is ultimately for the Wisconsin courts to decide. Judge Randa had no basis to interfere. Reading between the lines, it is hard to see this ruling from the court of appeals as anything other than a clear rebuke to an out-of-control district court.
Still, the fate of coordination laws around the country remains to be seen. Judge Randa badly overreached, but he is certainly not alone in his disdain for these and other campaign finance laws. The Brennan Center will continue working to defend and strengthen such common-sense measures to protect the integrity of our democracy.