Breaking: 7th Circuit Lets WI John Doe Campaign Finance Investigation Go Forward: Analysis

You can read the unanimous 14-page opinion by Judge Easterbrook at this link. The court reversed a controversial district court order from Judge Randa which enjoined a state investigation into possible illegal coordination between the WI Club for Growth and Wisconsin candidates.

Here is my analysis.

1.The principal basis for the 7th Circuit decision was that it was improper under the Anti-Injunction Act and abstention principles (which caution against federal court involvement in ongoing state judicial matters) for the trial court to issue an order shutting down the state proceeding. State courts had already stopped the John Doe investigations, in rulings up on appeal to the state Supreme Court.  Until the state Supreme Court acts, there is no reason for federal courts to get involved.

2. In the course of discussing whether an exception to abstention might apply if state officials investigating were acting in bad faith, the Court discussed some of the merits of the campaign finance controversy. It rejected the far-out anti-regulation view of Judge Randa, essentially saying that only Justice Thomas has indicated agreement with Judge Randa’s positions. The scope of the constitutionality of regulating coordination is up for grabs at the Supreme Court, and for now contribution limit laws (related to coordination) are not subject to strict scrutiny.  A snippet:

The Supreme Court has yet to determine what “coordination” means. Is the scope of permissible regulation limited to groups that advocate the election of particular candidates, or can government also regulate coordination of contributions and speech about political issues, when the speakers do not expressly advocate any person’s election? What if the speechimplies, rather than expresses, a preference for a particular candidate’s election? If regulation of coordination about pure issue advocacy is permissible, how tight must the link be between the politician’s committee and the advocacy group? Uncertainty is a powerful reason to leave this litigation in state court, where it may meet its end as a matter of state law without any need to resolve these constitutional questions….

The Supreme Court regularly decides campaign finance issues by closely divided votes. No 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. The district court broke new ground. Its views may be vindicated, but until that day public officials enjoy the benefit of qualified immunity from liability in damages.

3. What happens next? There could be an attempt to go en banc to the 7th Circuit, or more likely a cert. petition. In the meantime, nothing changes with the John Doe investigation until the WI Supreme Court opens it back up.

[This post has been updated.]

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