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O’Keefe v. Chisholm (Amicus Brief)

The Brennan Center filed an amicus brief urging the Seventh Circuit to reverse the district court’s preliminary injunction order and uphold Wisconsin’s treatment of coordinated expenditures as contributions subject to regulation.

Published: August 8, 2014

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.

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