Judge Randa Does It Again

Via the Milwaukee Journal Sentinel comes news that Judge Randa has issued an order and opinion allowing coordination between an outside group and a campaign on First Amendment grounds.

I expect this ruling will not stand. To begin with, the last time one of Judge Randa’s extremely deregulatory campaign finance opinions got to the Seventh Circuit, the appellate court smacked down Judge Randa’s reading of the First Amendment rules for campaigns and coordination:

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.

Further, we might invoke the Purcell principle even here: Judge Randa is changing the rules very close to an election, with the risk of confusion about what’s legal and the risk of undermining the interests in preventing corruption that undergird anti-coordination requirements.

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