19 F. Supp. 3d 861
E.D. Wis.2014Background
- Eric O’Keefe and Wisconsin Club for Growth (WCFG), a 501(c)(4), ran issue advocacy in support of Wisconsin Act 10 and other policy campaigns (2011–2014); they did not run express-advocacy ads for candidates.
- Milwaukee DA Chisholm opened a John Doe investigation (follow-on to a prior Walker-related John Doe) into alleged illegal coordination between Friends of Scott Walker (FOSW) and 501(c)(4) groups; the GAB participated and multiple county DAs opened parallel John Does.
- In October 2013 armed raids and seizure of documents occurred; broad subpoenas and secrecy orders were served on WCFG members and associates targeting numerous conservative groups.
- Plaintiffs claim the investigation and secrecy order chilled fundraising, disrupted national advocacy, and caused estimated fundraising losses and diversion of time.
- Plaintiffs sought a preliminary injunction to halt the John Doe investigation and to require return/destruction of seized materials; the court granted the injunction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Wisconsin campaign-finance law reaches coordinated issue advocacy (i.e., "political purposes") | O’Keefe: §11.01(16) must be limited to express advocacy; issue advocacy is protected First Amendment speech | Defendants: coordination with candidates converts issue advocacy into reportable political activity and can be regulated to prevent corruption | Held: "political purposes" must be confined to express advocacy; coordinated issue advocacy does not justify prosecution under Chapter 11 |
| Whether coordination between candidate/campaign and 501(c)(4) creates quid pro quo corruption sufficient to justify regulation | O’Keefe: coordination with issue-advocacy groups lacking express advocacy does not present quid pro quo corruption risk | Defendants: coordination increases corruption/avoidance risk and justifies enforcement and disclosure | Held: Speculative coordination does not show quid pro quo corruption; preventing only quid pro quo (or its appearance) can justify campaign-finance limits |
| Whether a secret John Doe investigation and seizures infringe First Amendment rights and warrant preliminary injunction | O’Keefe: secret criminal investigation, raids, secrecy orders and subpoenas cause irreparable chill on political speech and association | Defendants: investigation necessary to enforce campaign-finance laws and prevent circumvention by 501(c)(4)s | Held: Plaintiffs likely to succeed on First Amendment claim; secrecy, seizures and investigation unlawfully chilled protected issue advocacy; injunction granted |
| Remedy and scope: relief appropriate to halt investigation and secure seized materials | O’Keefe: injunction, return/destruction of seized materials, and relief from cooperation obligations | Defendants: enforcement interest and public interest in disclosure and enforcement of GAB interpretation | Held: Preliminary injunction granted; defendants must cease investigation, return seized property, destroy copies, and plaintiffs relieved of cooperation duties |
Key Cases Cited
- Buckley v. Valeo, 424 U.S. 1 (1976) (distinguishes contributions from expenditures; strict scrutiny for expenditure limits)
- Citizens United v. FEC, 558 U.S. 310 (2010) (corporate political speech protected; limits on independent expenditures impermissible)
- McCutcheon v. FEC, 572 U.S. 185 (2014) (campaign-finance regulation must target quid pro quo corruption or its appearance)
- FEC v. Wisconsin Right to Life, 551 U.S. 449 (2007) (speech is the "functional equivalent" of express advocacy only when no reasonable interpretation other than to influence an election exists)
- FEC v. Nat’l Conservative Political Action Comm., 470 U.S. 480 (1985) (quid pro quo corruption defined as financial exchange for political favors)