Brent Ferguson has posted this draft on SSRN (forthcoming, Emory Law Journal Online). Here is the abstract:
In July, the Wisconsin Supreme Court held that it violates the First Amendment to prevent political candidates from coordinating with outside spending groups like super PACs if the groups’ ads do not expressly advocate the election or defeat of a candidate. The decision is erroneous under federal precedent and fundamentally misunderstands the Supreme Court’s holdings distinguishing between independent spending and spending coordinated with a candidate. Wisconsin’s regulatory scheme will be largely inoperable for the time being: Contribution limits will be fairly meaningless, at least for sophisticated actors who seek to circumvent them. And the logic of the decision leads to the conclusion that candidates have the constitutional right to set up campaign accounts that may accept unlimited contributions, so long as that money is not used for express advocacy.
Because the Court’s reasoning lacked a coherent basis or a foundation in federal case law, it may not be overly optimistic to think that other state or federal courts will reject its reasoning. Yet there are indications that at least some regulators and courts may share the Wisconsin Court’s view, and there is little doubt that the issue will arise in other states. This article will review the law of coordination, as well as recent Supreme Court case law relied upon by the Wisconsin Court, to demonstrate the Court’s error. It will also address some of the effects the decision will have in Wisconsin and elsewhere if other courts similarly depart from longstanding precedent.