Just a Quick Thought on the John Doe Case and Its Troubling Implications for Campaign Finance Law

Yesterday I linked to this Milwaukee Journal Sentinel article about a new federal court decision.  As the article described it, “a federal judge ordered a halt Tuesday to the John Doe investigation into campaign spending and fundraising by Gov. Scott Walker’s campaign and conservative groups, saying the effort appeared to violate one of the group’s free speech rights.”

I am crashing under a number of impending deadlines, which will impede by blogging for the next few weeks. But I did want to say something quickly about this decision.

I don’t have a firm opinion on whether the judge was right or wrong on the facts here.  I’d have to study the case and controversy much more closely.  But I am concerned about the broader implications of this case if it is allowed to stand, particularly the judge’s virtual celebration of coordination and circumvention of campaign finance laws.

As I wrote to the election law listserv, I am concerned about the broad language of the opinion. I do think this ruling breaks new ground and goes much further than even Citizens United and McCutcheon.  While the Supreme Court is willing to tolerate circumvention of rules in the name of the First Amendment, this ruling celebrates it.  Further, it sees extensive cooperation between candidate campaigns and outside groups as well protected by the First Amendment when in fact it is the presence or absence of this cooperation which has been key in creating the dividing line between contributions and expenditures.  By blurring the rationales between contributions and expenditures, and by solidifying the distinction between express advocacy and issue advocacy, the opinion, if it stands, would lead to even further deregulation of the political system.

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