Wisconsin Right to Life, Inc. v. Thomas Barland

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Wisconsin Right to Life, Inc. v. Thomas Barland is a federal court case that challenged Wisconsin's campaign finance laws regulating independent expenditures by organizations. The suit was brought against Thomas Barland, head of the Wisconsin Government Accountability Board (GAB), by the group Wisconsin Right to Life (WRTL).

John Doe investigations

See also: John Doe investigations related to Scott Walker

Two John Doe investigations were launched by Milwaukee County District Attorney John Chisholm (D) into the activities of staff and associates of Gov. Scott Walker (R).

The first investigation, John Doe I, was launched after Walker aide Darlene Wink noticed funds were missing from the money raised by Operation Freedom, a charitable event for veterans that Walker hosted annually. Walker's office turned the case over to the Milwaukee County DA's office to investigate the missing funds.

Over a year passed before the DA's office began investigating the case. By this time, Walker had announced his candidacy for Governor of Wisconsin. On May 5, 2010, Assistant District Attorney Bruce Landgraf asked for the authority to launch a John Doe investigation into the missing funds. He asked for the John Doe on the premise of determining where the funds had originated (i.e., sponsors and donors of the Operation Freedom Event). His request was granted by Judge Neal Nettesheim, who had been appointed the John Doe I judge.

During the 2010 gubernatorial campaign, the John Doe investigation was expanded multiple times to include a Walker donor and members of Walker's county executive staff. The homes, offices and cars of these people were raided and searched, and property, such as computers and cell phones, was seized. The investigation lasted three years and resulted in the convictions of six people, four of whom weren’t related to the missing funds on which the investigation was predicated. The announcement of the charges against the six were made in January 2012, in the midst of an effort to recall Gov. Walker due to his support for Act 10.

On June 5, 2012, Gov. Walker won a recall election (R). In August 2012, the first John Doe investigation was rolled into a second investigation, John Doe II. This investigation was based on the belief that Governor Walker’s campaign had illegally coordinated with conservative social welfare groups that had engaged in issue advocacy during the recall elections.

The second John Doe investigation spanned multiple counties but was consolidated into one investigation, overseen by an appointed judge and one special prosecutor, Francis Schmitz. During the early morning hours of October 3, 2013, investigators served search warrants on several homes and subpoenaed records from 29 conservative organizations. Several weeks later, on October 25, 2013, three targets of the subpoenas filed a motion to have the subpoenas quashed. The judge overseeing the investigation, Judge Gregory Peterson, granted that motion in January 2014, stating that the prosecutor's theory of criminal activity was not, in fact, criminal under Wisconsin statutes. Although Schmitz filed an appeal to a higher court, the investigation was effectively stalled.

A series of lawsuits were filed, one against the John Doe prosecutors for a violation of free speech and several others against the agency that oversees campaign finance law, the Wisconsin Government Accountability Board (GAB), for trying to enforce unconstitutional regulations of issue advocacy groups, the regulations on which the prosecutor's theory was based.

The legality of the investigation eventually went before the Wisconsin Supreme Court. On July 16, 2015, the Supreme Court ruled in a 4-2 decision to halt the John Doe II investigation officially. The court combined three cases into one, thereby simultaneously ruling on all three. In its ruling, the Supreme Court criticized Schmitz's handling of the case and declared the actions of Chisholm and Schmitz were violations of the targets' First Amendment rights to political speech.

The Supreme Court, in interpreting Wisconsin's campaign finance law, ruled "that the definition of 'political purposes' [...] is unconstitutionally overbroad and vague under the First Amendment to the United States Constitution and Article 1, Section 3 of the Wisconsin Constitution because its language 'is so sweeping that its sanctions may be applied to constitutionally protected conduct which the state is not permitted to regulate.'"

The court noted that since issue advocacy is "beyond the reach of Ch. 11," Schmitz's theory of illegal coordination between Walker's campaign and social welfare groups was invalid. The court further declared "the special prosecutor's legal theory is unsupported in either reason or law," thereby declaring an official end to the John Doe II investigation.

Regarding the other two cases addressed in the ruling, the court denied Schmitz's supervisory writ and affirmed Peterson's original motion to quash the subpoenas. It also ruled that the John Doe II judges, Peterson and Barbara Kluka before him, had not "violated a plain legal duty" by allowing the appointment of one judge and one special prosecutor to preside over a multi-county John Doe, though the court did concede "the circumstances surrounding the formation of the John Doe investigation raise serious concerns."

In its ruling, the court ordered that "everything gathered as potential evidence—including thousands of pages of emails and other documents—be returned and all copies be destroyed."

Lawsuit

Background

In 2010, the United States Supreme Court ruled in Citizens United v. Federal Election Commission that corporate funding of independent political broadcasts in candidate elections could not be limited because doing so would be in noncompliance with the First Amendment. In July 2010, WRTL filed its lawsuit against Wisconsin Government Accountability Board Chair, Thomas Barland, saying that Wisconsin statutes were vague and overly broad, resulting in regulation of the political speech of organizations.

WRTL asked the court to declare the following Wisconsin state statutes unconstitutional:

• A ban on political spending by a corporation
• The definitions of "political committee" and "political purpose" that allow regulation of independent groups
• Rules enacted after Citizens United that continue to regulate issue advocacy and political speech
• The 24-hour reporting requirement for reporting a contribution over $500, and within 15 days of the election
• The oath for Independent Disbursements
• An aggregate contribution limit for individuals of $10,000 per year
• The $500 per year spending limit on solicitation for organizations using funds from a separate segregated fund
• The attribution and disclaimer requirements for radio ads

Decision

The case was filed in the Eastern District of Wisconsin and was assigned to Judge Charles Clevert. A similar lawsuit had been filed at the state level. This lawsuit was stayed until the Wisconsin Supreme Court ruled on that case.

In 2011, WRTL asked the District Court to rule on the single issue of the aggregate contribution limit for individuals. Clevert did not lift the stay, so WRTL appealed. The United States Court of Appeals for the 7th Circuit ruled that the aggregate contribution limit on individuals for donations given to organizations making independent expenditures was unconstitutional. The Seventh Circuit instructed Clevert to enter a permanent injunction.

The Wisconsin Supreme Court split 3-3 on the decision, which meant that the rules related to independent groups remained in place. WRTL asked Clevert to rule on the remaining issues. He granted a preliminary injunction on the ban on corporate spending on political speech and a partial injunction on the disclaimer for ads that ran less than 30 seconds. Clevert declined the request for a preliminary injunction on the rest of the issues.

WRTL again appealed to the Seventh Circuit. The court found the following:

• The ban on corporate spending on political speech was unconstitutional, and a permanent injunction was granted.
• The spending limit on solicitation for organizations using funds from a separate segregated fund was unconstitutional, and a permanent injunction was granted.
• The disclaimer regulations applied to ads of 30 seconds or less were unconstitutional, and granted a permanent injunction for ads of 30 seconds or less
• The definitions of “political purpose” and “political committee” as applied to groups who engage in issue advocacy were unconstitutional and could only be enforced for express advocacy
• The regulations treating issue advocacy the same as express advocacy during the 30 or 60 days before a primary or general election, if a candidate was mentioned, were unconstitutional and couldn't be enforced against issue advocacy organizations

While the case was pending, legislation was passed that expanded the 24-hour reporting requirement to 48 hours, so the court did not rule on that issue. The court upheld the oath for independent expenditures.

See also

• John Doe investigations related to Scott Walker
• Timeline of John Doe investigations related to Scott Walker
• Wisconsin John Doe laws
• Scott Walker
• Wisconsin Government Accountability Board

External links

• Wisconsin Right to Life, Inc. v. Thomas Barland