In O’Keefe v. Chisholm, plaintiff Eric O’Keefe of the Wisconsin Club for Growth, a 501(c)(4) organization, filed a lawsuit seeking to end an investigation into alleged illegal coordination between the campaign of Governor Scott Walker and outside groups during the 2012 attempt to recall Walker. For nearly two years, special prosecutors had been investigating Walker’s campaign and supporters through the use of a “John Doe” proceeding, a secret investigation used to determine if a crime has been committed.
On May 6, 2014, Judge Rudolph T. Randa of the U.S. District Court for the Eastern District of Wisconsin granted the plaintiffs’ motion for a preliminary injunction and ordered the defendants to destroy all evidence they obtained through the investigation. In his ruling, Judge Randa held that in the case of coordinated spending, only “express advocacy” i.e., speech that expressly advocates for the election or defeat of a clearly identified candidate, is subject to limitation. He held that limitations on coordinated “issue advocacy” speech are subject to strict scrutiny and, therefore, are impermissible even if a campaign is heavily involved in creating the communication.
The Brennan Center, with a team of pro bono counsel led by Brennan Center Board member Daniel F. Kolb, filed an amicus brief in the U.S. Court of Appeals for the Seventh Circuit arguing the lower court’s ruling goes against 40 years of Supreme Court precedent and urging the Court to overturn it. While the brief takes no position on whether the specific John Doe proceeding was properly commenced or should resume, it explains that there is no basis for the lower court’s assertion that coordinated issue advertisements falling outside the narrow confines of “express advocacy” carry no risk of corruption so long as the candidate and the spender share the same viewpoint. Contrary to the district court’s holding, the Supreme Court and other federal courts have not applied an “express advocacy” limit to coordinated expenditures, and doing so would further exacerbate the negative effects of outside spending in the post-Citizens United landscape.