CRG Advocates V Chisholm Et Al - Complaint With Exhibits

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF WISCONSIN

MILWAUKEE DIVISION
CITIZENS FOR RESPONSIBLE
GOVERNMENT ADVOCATES, INC.
Plaintiff,
Civil Case No. 2:14-cv-1222
v.
THOMAS BARLAND, in his official
capacity;
HAROLD FROEHLICH, in his official
capacity;
JOHN FRANKE, in his official capacity;
ELSA LAMELAS, in her official capacity;
GERALD NICHOL, in his official capacity;
TIMOTHY VOCKE, in his official capacity;
KEVIN J. KENNEDY, in his official
capacity; and
JOHN CHISHOLM, in his official capacity;
COMPLAINT
Defendants.
The plaintiff, Citizens for Responsible Government Advocates, Inc. (CRG), alleges as
follows:
NATURE OF THE ACTION
1.
This is an action seeking declaratory and injunctive relief from the enforcement of
Wisconsin law in violation of CRGs federal rights. According to the Wisconsin Government
Accountability Board (GAB), Wisconsin law regulates as contributions communication
expenditures coordinated with a state politician or candidate for state office whether or not the
expenditures qualify as express advocacy or its functional equivalent. As a result, organizations
like CRG that engage in issue advocacy cannot communicate with candidates or officeholders on
matters of public policy without risking criminal prosecution. GABs position conflicts with the
Case 2:14-cv-01222-RTR Filed 10/02/14 Page 1 of 19 Document 1
First Amendment precedents of federal and Wisconsin courts, including a Seventh Circuit
decision issued four months ago. See Wis. Right to Life, Inc. v. Barland, 751 F.3d 804, 833 (7th
Cir. 2014) (Barland II). CRG therefore seeks a declaration that Wisconsins campaign-finance
law, as interpreted by GAB, violates the First and Fourteenth Amendments to the U.S.
Constitution and seeks preliminary and permanent injunctions forbidding Defendants from
enforcing the relevant provisions of that law.
JURISDICTION AND VENUE
2.
This action arises under the First and Fourteenth Amendments to the United
States Constitution; the Civil Rights Act of 1871, 42 U.S.C. 1983; and the doctrine recognized
in Ex Parte Young, 209 U.S. 123 (1908). Jurisdiction of the Court is conferred by 28 U.S.C.
1331 because CRGs claims arise under the United States Constitution.
3.
The United States District Court for the Eastern District of Wisconsin is a proper
federal venue for this action under 28 U.S.C. 1391(b)(1) because all the defendants are
residents of Wisconsin and Defendant John Chisholm resides in the Eastern District of
Wisconsin.
PARTIES
4.
CRG is a social-welfare organization recognized as a non-profit entity under 26
U.S.C. 501(c)(4). Its offices are located in Milwaukee County, Wisconsin. CRG was founded
in 2006 to advocate for fiscally responsible policy and legislation on a local and statewide basis
and to empower citizens to become engaged in managing government. Over the years, it has
engaged in advocacy campaigns to promote quality improvement and cost reduction in local
government, fiscal responsibility at all levels of state government, government transparency and
public accountability, election integrity, and other issues.
2
5.
Seven of the defendantsThomas Barland, Harold Froehlich, John Franke, Elsa
Lamelas, Timothy Vocke, Gerald Nichol, and Kevin J. Kennedyare board members or officers
of GAB, which has authority over administration of Chapter 11 of the Wisconsin Statutes, which
is at issue in this action. These defendants are named in their official capacity.
6.
Defendant John Chisholm is the district attorney of Milwaukee County and has
independent authority to enforce Chapter 11 over citizens of Milwaukee County, including CRG.
He is named in his official capacity.
STATEMENT OF FACTS
A.
CRGs Activities
7.
CRG advocates in favor of fiscal conservatism and private property rights. CRGs
communications with its supporters and the public consist of speech on issues of public concern
in Wisconsin. These communications are issue advocacy: they convey CRGs positions on the
issues without expressly advocating the election or defeat of any candidate or engaging in the
functional equivalent of such express advocacy. CRG has regularly engaged in this kind of issue
advocacy since 2006 and intends to continue to do so into the future.
8.
CRGs issue advocacy takes several forms. CRG creates broadcast advertisements
on the issues. CRG also hosts educational events, such as a recent rally in Waukesha called Yes,
we did build it! featuring speakers from various backgrounds who gave presentations on
economic policy. CRG has hosted political candidates and officeholders at its educational events,
including Wisconsin Governor Scott Walker, Lieutenant Governor Rebecca Kleefisch, and U.S.
Senator Ron Johnson. CRG maintains a website that it uses to communicate its positions on the
issues to its supporters and the public.
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9.
CRGs activities are funded through contributions by supporters of its advocacy.
CRG accepts corporate contributions. CRG relies heavily on its supporters to fund its activities,
and the extent to which it can engage in its activities depends directly on its supporters
willingness to contribute funds to it. If CRGs fundraising among its supporters were impaired,
its ability to function effectivelyincluding its ability to engage in speech on the issueswould
be severely compromised.
10.
CRG does not make direct or in-kind contributions to candidates for office and
does not coordinate any political expenditures with officeholders or candidates for office.
11.
CRG is not a committee as the term is defined in Wisconsin Statutes 11.01(4)
and is not subject to the filing and disclosure requirements of Wisconsin Statutes 11.05.
B.
CRGs Intended Collaboration with Citizen-Candidates
12.
This suit involves CRGs intended collaboration with citizens who have decided
to participate directly in Wisconsin politics to advance fiscal responsibility and government

accountability. Those citizens include three current candidates for office in Wisconsin: Kim
Simac, Carl Pettis, and Jason Arnold.
13.
Kim Simac resides in Vilas County, where she is a member of the Board of
Supervisors, an elected position. Simac is up for reelection in 2014 and, in 2011, was the
Republican challenger against Democratic Wisconsin state Senator Jim Holperin. A committed
fiscal conservative, Simac became involved in politics in 2009 to confront the problems facing
Wisconsin and the nation.
14.
Carl Pettis resides in Waukesha County, where he is a member of the Board of
Supervisors, an elected position. Pettis is up for reelection in 2014. A lifelong resident of

Waukesha County, Air Force veteran, and former small-business owner, Pettis has been an
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advocate for conservative principles in Wisconsin, including limited government and fiscal
responsibility, for decades.
15.
Jason Red Arnold is a resident of Milwaukee County and a 2014 candidate for
the Wisconsin Senate. An Information Technology consultant, Arnold became involved in

politics to promote fiscally conservative policies.
16.
CRG has long advocated in favor of participatory democracy, encouraging
citizens to hold government accountable, particularly on fiscal issues, and to take back the reins
of power from the political class and professional politicians. CRG believes that government
works better, and is more accountable to the people, when ordinary citizens participate directly in
government, such as by running for office, forcing elected officials to justify their policy choices,
and injecting common sense into political debates.
17.
To that end, CRG intends to create and publish a website, Take Charge
Wisconsin, featuring the stories of citizens who have served in office or are running for office
to promote common-sense conservative fiscal policies. Take Charge Wisconsin will advocate for
conservative fiscal policies such as efficient government and waste reduction, will highlight
examples of government inefficiencies and waste and identify the politicians responsible for
them, and will educate citizens on how to promote conservative fiscal policies through
participation in politics.
18.
Collaboration with Simac, Pettis, and Arnold, as well as other fiscally
conservative elected officials and candidates, is central to the creation and ultimately the
effectiveness of the Take Charge Wisconsin website. CRG intends to jointly develop with Simac,
Pettis, and Arnold materials documenting how political incentives frustrate the achievement of
conservative fiscal policy and describing how they have entered into politics to change the terms
5
of the debate and bring these issues to the fore. These materials, including videos, will highlight
specific examples of waste and inefficiency and name namesthat is, they will call out the
politicians who bear responsibility for wasteful government policies. They will also educate
concerned citizens how they can be part of the solution. The overall purposes of these materials
are to (1) convince citizens that there is a serious problem; (2) encourage citizens to contact the
politicians who are responsible for aspects of that problem to express their concerns;
(3) demonstrate through the examples of Simac, Pettis, and Arnold that conscientious citizens
can make a difference in Wisconsin governance; and (4) educate citizens on further actions that
they can take. CRG is aware of no better way to accomplish these things other than by
collaborating with citizen-candidates like Simac, Pettis, and Arnold who have direct experience
in these matters and can serve as examples for other concerned citizens.
19.
CRG may also undertake broadcast advertising, in collaboration with Simac,
Pettis, and Arnold, to promote the Take Charge Wisconsin website. These advertisements would
identify examples of government waste and inefficiencies and the politicians who bear
responsibility for them and would encourage citizens to take action by contacting those
politicians and visiting the Take Charge Wisconsin website to learn how they can become more
engaged. CRG anticipates that these advertisements may be narrated by, or otherwise feature,
Simac, Pettis, and Arnold.
20.
CRG hopes that Take Charge Wisconsin will have an immediate impact in
Wisconsin policy debates, including in the current election cycle, by educating citizens on the
issues and encouraging them to participate in Wisconsin politics. CRG also views Take Charge
Wisconsin as a long-term project to drive greater citizen participation in Wisconsin politics.
CRG intends to launch the website as soon as possible and to maintain it for at least several years
6
into the future. It intends to collaborate with additional fiscally conservative elected officials and
candidates in the future to create more content for the website and increase its relevance and
effectiveness.
21.
CRG has registered the Internet domain name takechargewisconsin.org and
intends to host the Take Charge Wisconsin website at that address. CRG has already begun
planning for some of the websites content. CRG has not been able to begin creating content,
however, due to its fear that its intended collaboration with Simac, Pettis, and Arnold may
subject it to criminal sanctions under Wisconsin law. CRG believes, based on its principals
experience maintaining other websites, including crgnetwork.com, that it could prepare initial
content for Take Charge Wisconsin and launch the website in approximately one week, with
broadcast advertising to follow immediately thereafter.
C.
Wisconsins Campaign-Finance Framework
22.
Chapter 11 of Wisconsin Statutes sets forth the states campaign-finance regime,
which includes a system of contribution limitations, bans on certain contributions, and reporting
requirements. Campaign committees are prohibited from receiving contributions in excess of
statutory limitations and from receiving contributions from corporations. Wis. Stat. 11.06(1),
11.26, 11.38. Both campaign committees and independent political committees are subject to
registration and reporting requirements for contributions received. E.g., Wis. Stat. 11.05.
Organizations that are not campaign committees or political committees are generally not subject
to regulation under Chapter 11.
23.
Chapter 11 deems certain activities involving independent committees and
campaign committees to be campaign contributions, even if those activities do not involve the
conveyance of money or property from the independent committee to the campaign committee.
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For example, Wisconsin Statutes 11.10(4) provides that [a]ny committee which is organized
or acts with the cooperation of or upon consultation with a candidate or agent or authorized
committee of a candidate, or which acts in concert with or at the request or suggestion of a
candidate or agent or authorized committee of a candidate is deemed a subcommittee of the
candidates personal campaign committee. Wisconsin Statutes 11.06(4)(d) provides that a
contribution, disbursement or obligation made or incurred to or for the benefit of a candidate is
reportable by the candidate or the candidates personal committee if it is made or incurred with
the authorizations, direction or control of or otherwise by prearrangement with the candidate or
the candidates agent. GAB has taken the position that expenditures coordinated with a political
candidate constitute contributions, as defined in Wisconsin Statutes 11.01(6), and are
therefore subject to Chapter 11s restrictions on contributions. Ex. A, El. Bd. 00-02 (reaffirmed
3/26/08). See also Wis. Stat. 11.26 (contribution caps for contributions to candidates for
various state offices), 11.24 (banning contributions other than from the funds or property
belonging to the contributor), 11.38 (banning contributions by corporations), 11.30 (prohibition
on anonymous contributions), 11.05 (reporting requirements for contributions), 11.32
(prohibition on anonymous advertisements), 11.06 (contents of reports filed under Section
11.05), 11.12 (ban on contributions that are not reported), 11.14 (deposit account requirements
for contributions), 11.16 (requirements for campaigns in receiving contributions), 11.23
(limitations on contributions concerning a referendum), 11.27 (prohibition on false reports, such
as those failing to report contributions), 11.36 (prohibiting solicitation of contributions on certain
public property), 11.60 (civil penalties for violations of these provisions), 11.61 (criminal
penalties for violations of these provisions), 11.66 (citizen suit for enforcement of these
8
provisions). This approach is intended to prevent circumvention of contribution bans and caps by
treating coordinated spending as a contribution or campaign expenditure. 1
24.
All the key terms in these provisionscommittee, disbursement,
contribution, and obligationdepend on the phrase for political purposes as the term is
defined in Wisconsin Statutes 11.01(16). A contribution is a gift, subscription, loan,
advance, or deposit of money or anything of valuemade for political purposes. Wis. Stat.
11.01(6)(a)(1) (emphasis added). An incurred obligation is every express
obligationincluding every loan, guarantee of a loan or other obligation or payment for any
goods, or for any servicesincurred by a candidate, committee, individual or group for political
purposes. Wis. Stat. 11.01(11) (emphasis added). A disbursement is a purchase, payment,
distribution, loan, advance, deposit, or gift of money or anything of value[or a contract,
promise, or agreement to do any of these things] made for political purposes. Wis. Stat.
11.01(7)(a) (emphasis added).
25.
Chapter 11 defines [a]cts which are for political purposes to mean those done
for the purpose of influencing the election or nomination for election of any individual to state or
local office, for the purpose of influencing the recall from or retention in office of an individual
holding a state or local office. Wis. Stat. 11.01(16)(a).
26.
To avoid striking down the relevant provisions of Wisconsins campaign-finance
law as unconstitutionally vague and overbroad, the Seventh Circuit adopted a limiting
construction of the term political purposes to reach only express advocacy and its functional
equivalent. Barland II, 751 F.3d at 83239. Under Supreme Court precedent and GAB
GAB has taken the position that coordination between a candidate and an organization not
registered as a political committee renders the organization a committee subject to regulation
under Chapter 11. El. Bd. 00-02 (reaffirmed 3/26/08).
9
administrative regulations, a communication is express advocacy if it uses language such as

vote for, support, or similar language explicitly urging the viewer to cast a vote for or
against a specific candidate in an election. A communication is the functional equivalent of
express advocacy if it is susceptible of no reasonable interpretation other than as an appeal to
vote for or against a specific candidate. See FEC v. Wis. Right to Life, Inc., 551 U.S. 449, 457,
46970 (2007) (Roberts, J.) (WRTL). In contrast, communications that focus on policy issues and
urge the public to take a stance on such issues are not express advocacy, even if they feature a
political candidate and ask the public to contact the candidate regarding the issue. Such
communications are known as issue advocacy. WRTL, 551 U.S. at 470.
27.
Only one reported decision has considered whether Wisconsin laws for political
purposes term includes issue advocacy that is coordinated with a political candidate. In
Wisconsin Coalition for Voter Participation, Inc. v. State Elections Board, 605 N.W.2d 654, 659
(1999) (WCVP), the Wisconsin Court of Appeals held, with respect to coordinated
communication expenditures, that the term political purposes is not restricted by the cases, the
statutes or the code to acts of express advocacy. According to the Wisconsin Court of Appeals,
Chapter 11 regulates issue advocacy if it is done with the subjective intent, or the effect, of
influencing an election. See id. at 684 & n.9, 685 & n.10.
28.
Violations of Chapter 11, including those that GAB contends apply to issue
advocacy coordinated with a political candidate, are enforceable through civil and criminal
penalties. Wis. Stat. 11.60, 11.61.
D.
GAB Has Adopted and Enforced an Interpretation of Wisconsin Law

Restricting Issue Advocacy if It Is Coordinated with a Candidate
10
29.
GAB and Chisholm maintain that the term for political purposes reaches issue
advocacy if it is made or incurred under the authorization, direction or control of or otherwise by

prearrangement with a candidate or a candidates agent.
30.
On June 20, 2013, GAB formally authorized a statewide campaign-finance
investigation predicated on the interpretation of Wisconsin law that issue advocacy is subject to
regulation when coordinated with a political candidate: Any individual or organization,
including a corporation, may make an independent disbursement or purchase an issue ad.
Coordination with a candidate or candidate committee transforms such purportedly independent
disbursements and even true issue ads into in-kind or monetary contributions to a candidate.
GABs resolution stated that such coordination may violate the contribution limits and bans, as
well as the reporting requirements, of Wisconsin law.
31.
GAB filed an amicus brief in OKeefe v. Chisholm, No. 14-1822 (7th Cir. filed
Aug. 27, 2014), advancing the view that purported independent groups have no absolute First
Amendment right to engage in coordinated issue advocacy with a candidate, because in doing
so such groups have made contributions to the candidate, making them no longer independent.
Ex. B, GAB Amicus Br. at 4.
32.
Mr. Francis Schmitz, who currently serves as a special investigator for the GAB
in its statewide investigation and serves as a special prosecutor nominated by Defendant

Chisholm in the investigation, has filed papers in federal and state courts advancing the position
that issue advocacy on the part of a social-welfare organization may constitute a contribution to a
candidate committee, and render that social-welfare organization a subcommittee of a candidate
committee, if the social-welfare organization runs issue advocacy that is subjectively intended to
11
influence, or has the effect of influencing, an election and that issue advocacy is coordinated
with a candidate or agent of a candidate. E.g., Ex. C, States Response to Motion to Quash.
33.
GABs Executive Director, Defendant Kennedy, has offered a sworn statement to
the Wisconsin Court of Appeals that a candidates coordination with issue advocacy groupsis
subject to campaign finance regulation because the coordination results in a political
contribution. Ex. D, Kevin Kennedy Aff. 9. Defendant Kennedy has publicly stated that this
interpretation is compelled by Wisconsin law.
34.
Defendant Chisholm has also advanced the position that the definition for
political purposes includes issue advocacy coordinated with a political candidate and has
worked in concert with GAB in conducting its statewide issue-advocacy-coordination
investigation. Chisholms office formally commenced an investigation in August 2012 into an
alleged issue-advocacy coordination scheme. Chisholm has also advanced this position in
federal-court filings.
E.
The Chilling Effect of GABs Coordinated-Issue-Advocacy Theory
35.
In GABs view, coordination of issue advocacy with a political candidate may
result in various violations of Chapter 11, resulting in a concrete threat of civil or criminal
enforcement against a person who collaborates with a candidate or office-holder concerning
issue advocacy.
36.
First, in GABs view, under Wisconsin Statutes 11.10(4) an entity that
coordinates with a candidate or his official campaign committee becomes a subcommittee of that
campaign committee by operation of law. Under GABs position, an issue-advocacy group that
communicates with a candidate or officeholder risks becoming subject to all the regulations in
12
force against an official campaign committee. Under those regulations, the organization would
be barred from:
Making independent expenditures without the permission of the campaign

committees treasurer, Wis. Stat. 11.16(1)(a);
Using preexisting funds for any purpose, 11.05(6);
Accepting corporate contributions for independent expenditures, 11.38;
Accepting individual contributions for independent expenditures above the base

limits applicable to the candidates committee, 11.26(1); and
Contributing to other candidates committees where the candidates committee

has already contributed the base amount, 11.26(2).
37.
Second, in GABs view, under Wisconsin Statutes 11.06(4) expenditures
coordinated with a political candidate or his campaign committee are deemed contributions to
that committee. Under GABs position, expenditures associated with engaging in issue advocacy
would thereby be rendered contributions to the campaign. If the party producing the issue
advocacy is a corporation, such contributions would be illegal per se under Wisconsin law.
Such contributions would also be illegal if they exceed contribution limits (which are, for an
individual, $1,000 for a state Senate candidate, $500 for a state assembly candidate, $250 for a
local-office candidate, and up to $10,000 for candidates for other offices, Wis. Stat. 11.26(1))
or if they are not properly reported.
38.
GABs vigorous advancement of this theory indicates that it intends to continue to
regulate and restrict issue advocacy coordinated with a political candidate. It is therefore certain
that GAB would deem CRGs proposed issue-advocacy campaign with Kim Simac, Carl Pettis,
and Jason Arnold to violate Wisconsin law and subject CRG to campaign-committee status,
13
thereby forcing it to forgo all such issue advocacy or else face criminal investigation and
sanctions.
Count I
Violation of the First and Fourteenth Amendments and 42 U.S.C. 1983:
Definition of Political Purposes Is Unconstitutionally Overbroad
39.
CRG repeats and re-alleges the allegations of Paragraphs 138.
40.
The First Amendment to the United States Constitution, as applied to the states by
the Fourteenth Amendment, protects CRGs right to engage in speech about policy issues,
including its right to make expenditures in furtherance of such speech. The First Amendment
also protects CRGs right to associate with likeminded persons and to petition government
officials in furtherance of its advocacy mission.
41.
Laws that burden political speech are subject to strict scrutiny, which requires
the Government to prove that the restriction furthers a compelling interest and is narrowly
tailored to achieve that interest. Citizens United v. FEC, 558 U.S. 310, 340 (2010) (quotation
marks omitted). When the Government restricts political speech, it therefore must demonstrate
that the restrictions are narrowly tailored to further the permissible objective of preventing quid
pro quo corruption. Id. at 359. See also McCutcheon v. FEC, 134 S. Ct. 1434, 1452 (2014).
42.
The Supreme Court has never recognized a compelling interest in regulating
adsthat are neither express advocacy nor its functional equivalent. WRTL, 551 U.S. at 476. To
the contrary, it has held that [i]ssue adsare by no means equivalent to contributions, and the
quid-pro-quo corruption interest cannot justify regulating them. Id. at 47879.
43.
GAB has interpreted Wisconsin Statutes 11.01(16) to reach issue advocacy
coordinated with a political candidate and thereby impose restrictions on such issue advocacy.
14
44.
Moreover, GABs interpretation results in restriction and prohibition of activities
that are not made for a political purpose and raise no risk of quid pro quo corruption. Under
Wisconsin Statutes 11.10(4), an organization that engages in any coordination with a campaign
is subjected to Chapter 11s campaign-committee regulations as to all its activities, even
activities not coordinated with a political candidate or undertaken without any political
purposes.
45.
Accordingly, the restrictions of Wisconsin law, as interpreted by GAB, on issue
advocacy coordinated with a political candidate are not supported by any compelling interest and
are therefore overbroad and facially unconstitutional.
Count II
Violation of the Fourteenth Amendment and 42 U.S.C. 1983:
Definition of Political Purposes Is Unconstitutionally Vague
46.
47.
The Due Process Clause of the Fourteenth Amendment protects Plaintiffs right
not to be subject to vague government edicts.

48.
The Seventh Circuit has already held that, to protect that right, the statutory
definition of political purposes in section 11.01(16) and the regulatory definition of political
committee in GAB 1.28(1)(a) are limited to express advocacy and its functional equivalent as
those terms were explained in Buckley and Wisconsin Right to Life II. Barland II, 751 F.3d at
834.
49.
That reasoning applies with equal or greater force to Chapter 11s treatment of
coordinated expenditures. In GABs view, such expenditures are made for political purposes
when an organization subjectively intends to influence an election or its expenditures have the
effect of so doing. CRG has no way to know when such subjective intent may be imputed to its
15
activities, or what political effect its speech may have, and therefore must forego protected
speech and association to avoid criminal prosecution. See WRTL, 551 U.S. at 467.
50.
Wisconsin Statutes 11.01(16), as interpreted by GAB and applied through
various provisions of Chapter 11, is therefore unconstitutionally vague and violates Plaintiffs
rights under the Due Process Clause of the Fourteenth Amendment.
Count III
Violation of the First and Fourteenth Amendments and 42 U.S.C. 1983:
Definition of Political Purposes Is Unconstitutional as Applied to CRGs Issue Advocacy
51.
52.
The First Amendment to the United States Constitution, as applied to the states by
the Fourteenth Amendment, protects CRGs right to engage in speech about policy issues,
including its right to make expenditures in furtherance of such speech. The First Amendment
also protects CRGs right to associate with likeminded persons and to petition government
officials in furtherance of its advocacy mission.
53.
Laws that burden political speech are subject to strict scrutiny, which requires
the Government to prove that the restriction furthers a compelling interest and is narrowly
tailored to achieve that interest. Citizens United, 558 U.S. at 340 (quotation marks omitted).
When the Government restricts political speech, it therefore must demonstrate that the
restrictions are narrowly tailored to further the permissible objective of preventing quid pro quo
corruption. Id. at 359. See also McCutcheon v. FEC, 134 S. Ct. 1434, 1452 (2014).
54.
The Supreme Court has never recognized a compelling interest in regulating
adsthat are neither express advocacy nor its functional equivalent. WRTL, 551 U.S. at 476. To
the contrary, it has held that [i]ssue adsare by no means equivalent to contributions, and the
quid-pro-quo corruption interest cannot justify regulating them. Id. at 47879.
16
55.
The restriction of Wisconsin law, as interpreted by GAB, on issue advocacy
coordinated with a political candidate is not supported by any compelling governmental interest
and is not narrowly tailored to the governments interest in preventing quid pro quo corruption. It
is therefore unconstitutional as applied to CRGs intended coordinated issue advocacy.
Count IV
Declaratory Judgment Pursuant to 28 U.S.C. 2201 and 2202
56.
CRG repeats and re-alleges the allegations of Paragraphs 1-55.
57.
An actual controversy exists between Defendants and CRG regarding the
constitutionality of Wisconsins regulation of issue advocacy coordinated with a political

candidate.
58.
CRG is entitled to a declaration of its rights under the First and Fourteenth
Amendments and any further necessary or proper relief against Defendants pursuant to 28 U.S.C.
2201 and 2202.
Count V
Preliminary and Permanent Injunctive Relief
59.
60.
CRGs First and Fourteenth Amendment rights are well established under case
law of the Supreme Court and courts of appeals. See, e.g., Barland II, 751 F.3d at 833; WRTL,
551 U.S. at 476. Accordingly, CRG has a strong likelihood of success on the merits of this case.
61.
CRG is suffering irreparable injury as a result of Defendants enforcement and
interpretation of Wisconsins campaign-finance statute to restrict CRG from fully and freely
exercising its core constitutional rights of political speech and association. The loss of First
Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable
injury. Elrod v. Burns, 427 U.S. 347, 373 (1976).
17
62.
Defendants will suffer no injury at all if they are enjoined from enforcing GABs
unconstitutional interpretation of Wisconsins campaign-finance statute.

63.
An injunction would serve the public interest, as the public interest favors the
exercise of First Amendment rights and is not harmed by the injunction of government action
that is likely unconstitutional. ACLU of Ill. v. Alvarez, 679 F.3d 583, 58990 (7th Cir. 2012).
PRAYER FOR RELIEF
Wherefore, Plaintiff CRF respectfully requests that this Court enter judgment against the
Defendants, including:
a) An order declaring that the definition of political purposes found in Wisconsin
Statutes 11.01(16) is facially unconstitutional and unconstitutionally vague, or
adopting a limiting construction of that definition that excludes issue advocacy,
whether or not coordinated with a political candidate;
b) An order declaring that the restrictions of Wisconsin Statutes 11.05, 11.06,
11.10(4) 11.12, 11.14, 11.16, 11.23, 11.24, 11.26, 11.27, 11.30, 11.36, 11.38,
11.60, 11.61, and 11.66 are facially unconstitutional and unconstitutionally vague,
or adopting a limiting construction of those provisions that excludes issue
advocacy, whether or not coordinated with a political candidate;
c) An order declaring Wisconsin Statutes 11.01(16), as applied through the
restrictive provisions of Chapter 11, unconstitutional as applied to CRGs
intended coordinated issue advocacy;
d) Preliminary and permanent injunctions enjoining Defendants, their agents,
officers, employees, successors, and all persons acting in concert with each or any
of them from implementing, enforcing, or giving any effect to the provisions of
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Chapter 11 as applied to issue advocacy, whether or not coordinated with a

political candidate;
e) Costs and attorneys fees pursuant to 42 U.S.C. 1988 or any applicable statute
or authority;
f) Such other relief as this Court determines is just and proper.
Dated:
October 2, 2014
Respectfully submitted,
/s/ David B. Rivkin
David B. Rivkin
Lee A. Casey
Mark W. DeLaquil
Andrew M. Grossman
Richard B. Raile
Baker & Hostetler LLP
1050 Connecticut Ave., N.W., Suite 1100
Washington, D.C. 20036
(202) 861-1731
drivkin@bakerlaw.com
Attorneys for Plaintiff CRG
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EXHIBIT A
Case 2:14-cv-01222-RTR Filed 10/02/14 Page 1 of 104 Document 1-1
June 21, 2000

Susan Armacost
Legislative/PAC Director
Wisconsin Right to Life
10625 West North Avenue, Suite LL
Randy Nash
Chairperson
Milwaukee, Wisconsin 53226-2331
Elections Board Opinion 00-02
William S. Reid
Director of Governmental Affairs
Metropolitan Milwaukee Association of Commerce
756 North Milwaukee Street
Milwaukee, Wisconsin 53202
Re: Guidelines Relative to Non-advocacy Candidate Commentary, Voter Registration and
Get-out-the Vote Efforts
Dear Ms. Armacost and Mr. Reid:
Each of you has requested, on behalf of your respective organizations, that the State Elections Board
issue a formal opinion establishing guidelines for voluntary associations and other non-registrants who
wish to spend money for the purpose of publishing and distributing the following types of
communications: communications that raise voter awareness about candidates and campaign issues;
communications that promote voter registration or voter participation; and communications that are
limited to members, shareholders and subscribers.
Your requests are as follows:
Metropolitan Milwaukee Association of Commerce
In the past, if a get-out-the-vote effort did not advocate a specific candidate, they were exempt from state
election laws (s.11.04, Wisconsin Statutes).
A November 26, 1999 decision (No. 99-2574, Court of Appeals, District IV) says the Elections Board can
investigate get-out-the-vote efforts carried out under s.11.04 even if they do not advocate on behalf of any
candidate. Based on this recent court decision, if a candidate or campaign is aware or encourages such a
non-advocacy effort, the cost of the effort is a reportable contribution that must be fully disclosed.
To our knowledge, the Elections Board has never articulated this standard. As Wisconsin's Supreme
Court said in its ruling last year in the WMC case:
"Because we assume that [persons are] free to steer between lawful and unlawful conduct, we
insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is
prohibited so that he [or she] may act accordingly."
Susan Armacost
William S. Reid
June 21, 2000
Page 2
Given the short time frame prior to the upcoming spring elections, it is imperative for the Elections Board
to provide fair warning and guidance to the many organizations conducting get-out-the-vote efforts.
WISCONSIN RIGHT TO LIFE

I am writing on behalf of Wisconsin Right to Life, Inc. (WRL, Inc.) and the Wisconsin Right to Life
Political Action Committee (WRL/PAC) in order to receive State Elections Board clarification of how
Clearinghouse Rule 99-150 and the November 26 Court of Appeals decision in Wisconsin Coalition for
Voter Participation v. State Elections Board would affect various activities that may be carried out by
WRL, Inc. and WRL/PAC in the 2000 elections.
I have enclosed copies of some publications, a phone script and a radio ad that we have used in past
elections. We would like clarification of how the Board would view these activities in light of the Appeals
Court decision and Clearinghouse Rule 99-150.
Specifically, we would like to know: 1) which of these activities would the Board consider to fall under
Clearinghouse Rule 99-150 and, thus, be subject to state election law? 2) if any of these activities were
carried out in consultation with a candidate or a candidate's committee, which ones would the Board
consider to be a contribution to a candidate's campaign and thus, subject to state election law? 3) if the
Board considers any of these materials to be subject to state election law, would they be exempt if they
were received only by members of Wisconsin Right to Life?
The Elections Board prefaces its commentary on the specifics of a response to your requests with the
caveat that three of the areas -- "issue" advocacy, "coordinated" expenditures, and intra-association
communications -- in which you have requested the Board's opinion are so fact intensive that the Board's
opinion is virtually limited to the facts upon which the opinion is predicated. Slight changes in the
wording of an issue advocacy communication or minimal increases in the amount or extent of contacts
by a campaign agent regarding an expenditure of an independent committee, or expanding an intraassociation communication beyond the strict limits of "endorsements of candidates, positions on a
referendum or explanation of its views and interests," can completely change the regulatory outcome.
I. WRL Request
WRL is requesting the Board's opinion with respect to the association's activities in its non-registrant capacity,
not with respect to its sponsored PAC's activity. Consequently, what WRL is asking the Board is which of the
described communications or described circumstances will impose a registration and reporting requirement on
the association -- a requirement that the association is not able to meet because of its corporate non-MCFL
status. (MCFL status refers to the holding of the U.S. Supreme Court in Massachusetts Citizens for Life v.
Federal Election Commission, 479 U.S. 238 (1986) that certain non-profit, ideological corporations may not be
prohibited from making expenditures for express advocacy purposes. Whether or not WRL would or could
qualify for that status is not in issue in this opinion and, therefore, WRL will be treated as a non-registrant for
purposes of this discussion.)
WRL has raised three issues for the Board's consideration and discussion: 1) whether a given communication
would cross the line from unregulated issue advocacy to regulated express advocacy; 2) with respect to a
Susan Armacost
William S. Reid
June 21, 2000
Page 3
communication that would otherwise be unregulated, what kind of "contacts" between officers or agents of
WRL and officers or agents of the campaign that "benefits" from the communication would constitute
"coordination" between the two entities causing the communication (and the expenditures for it) to be subject to
campaign finance regulation; 3) if the text of a communication would cause it to be subject to regulation under
the express advocacy test, would that communication nevertheless be free from regulation, under s.11.29(1),
Stats., if the association limited distribution of the communication to members, shareholders and subscribers of
the association, to the exclusion of all others.
DISCUSSION
A. Express Advocacy vs. Issue Advocacy
The term "express advocacy," in the context of campaign finance regulation, was established in the U.S.
Supreme Court's decision in Buckley v. Valeo, 424 U.S. 1 (1976), in the Court's review of the Federal
Election Campaign Act's expenditure limitations, (s.608(e)(1) of the federal act):
We agree that in order to preserve the provision against invalidation on vagueness grounds, s.608(e)(1)
must be construed to apply only to expenditures for communications that in express terms advocate the
election or defeat of a clearly identified candidate for federal office. (at p.702)
One concludes from the court's discussion that money that is spent, (by an otherwise non-registrant), for
a communication which expressly advocates the election or defeat of a clearly identified candidate is
subject to campaign finance regulation. Conversely, money that is spent (by an otherwise nonregistrant) for a communication that does not expressly advocate the election or defeat of a clearly
identified candidate is not subject to campaign finance regulation (absent other circumstances: see the
discussion on "coordination"). In applying Buckley, the courts have said that the express advocacy
standard establishes a three-prong test for determining whether a communication, and the expenditure
for it, is subject to regulation (i.e., contains express advocacy):
1. The communication must clearly identify a candidate. Whether by name, description, picture
or other depiction, the identity of the candidate(s) discussed in the communication must be
unmistakable.
2. The communication must advocate the candidate's election or defeat.
3. The advocacy must be express, not implied.
Requirements (2) and (3) almost have to be read together such that a message which criticizes a specific
candidate but calls for his/her election or defeat only impliedly, not expressly, is not subject to
regulation. And a communication expressly advocating some action other than electing or defeating a
candidate is also not subject to regulation. To clarify, or provide examples of, these joint requirements,
the Buckley Court added (to the above quoted language on p.702), Footnote 52 to spell out words or
terms that expressly advocate election or defeat. Those terms, (commonly referred to as the "magic
words"), are:
Susan Armacost
William S. Reid
June 21, 2000
Page 4
1.
2.
3.
4.
5.
6.
7.
8.
Vote for;
Elect;
Support;
Cast your ballot for;
Smith for Assembly;
Vote against;
Defeat;
Reject.
The Buckley decision and, particularly, its express advocacy test have been the subject of numerous
federal court decisions. Broadly generalized, those decisions go in two different directions. One
direction reflected in decisions in the First, Second and Fourth Circuits of the United States Courts of
Appeals (and in various district court decisions) takes a strict-construction approach to the Buckley
express advocacy test, requiring use of the "magic words," or an equivalent of those words, to subject a
communication to regulation. More significantly, this direction limits the determination of express
advocacy to the text of the message and virtually excludes examination of the context in which the
message is uttered. This approach considers the Buckley Court to have intended the express advocacy
test to be a "bright line" demarcation between what may be regulated and what may not. The other
direction is reflected in the U.S. Court of Appeals Ninth Circuit's decision in FEC v. Furgatch, 807 F. 2d
857 (9th Cir. 1987), which rejected a strict "magic words" approach and added a context-based
determination of express advocacy in the form of "limited reference to external events."
We begin with the proposition that "express advocacy" is not strictly limited to communications using
certain key phrases. The short list of words included in the Supreme Court's opinion in Buckley does not
exhaust the capacity of the English language to expressly advocate the election or defeat of a candidate. A
test requiring the magic words "elect," "support," etc., or their nearly perfect synonyms for a finding of
express advocacy would preserve the First Amendment right of unfettered expression only at the expense of
eviscerating the Federal Election Campaign Act. "Independent" campaign spenders working on behalf of
candidates could remain just beyond the reach of the Act by avoiding certain key words while conveying a
message that is unmistakably directed to the election or defeat of a named candidate. (at p.863)
We conclude that context is relevant to a determination of express advocacy. A consideration of the context
in which speech is uttered may clarify ideas that are not perfectly articulated, or supply necessary premises
that are unexpressed but widely understood by readers or viewers. We should not ignore external factors
that contribute to a complete understanding of speech, especially when they are factors that the audience
must consider in evaluating the words before it. However, context cannot supply a meaning that is
incompatible with, or simply related to, the clear import of the words. (at pp.863-864)
With these principles in mind, we propose a standard for "express advocacy" that will preserve the efficacy
of the Act without treading upon the freedom of political expression. We conclude that speech need not
include any of the words listed in Buckley to be express advocacy under the Act, but it must, when read as a
whole, and with limited reference to external events, be susceptible of no other reasonable interpretation but
as an exhortation to vote for or against a specific candidate. This standard can be broken into three main
components. First, even if it is not presented in the clearest, most explicit language, speech is "express" for
present purposes if its message is unmistakable and unambiguous, suggestive of only one plausible meaning.
Susan Armacost
William S. Reid
June 21, 2000
Page 5
Second, speech may only be termed "advocacy" if it presents a clear plea for action, and thus speech that is
merely informative is not covered by the Act. Finally, it must be clear what action is advocated. Speech
cannot be "express advocacy of the election or defeat of a clearly identified candidate" when reasonable
minds could differ as to whether it encourages a vote for or against a candidate or encourages the reader to
take some other kind of action.
We emphasize that if any reasonable alternative reading of speech can be suggested, it cannot be express
advocacy subject to the Act's disclosure requirements. This is necessary and sufficient to prevent a chill on
forms of speech other than the campaign advertising regulated by the Act. At the same time, however, the
court is not forced under this standard to ignore the plain meaning of campaign-related speech in a search
for certain fixed indicators of "express advocacy."
(at p.864)
A careful analysis of what the Furgatch court is really saying raises the question whether the court is
saying something different from Buckley or saying the same thing differently. The answer to that
question seems to depend on the analyst's perspective. What the court did say was that Buckley did not
establish a "bright line." Also, the three-prong Buckley test becomes a four-prong test:
1. Speech is "express" for present purposes if its message is unmistakable and unambiguous, suggestive
of only one plausible meaning.
2. Second, speech may only be termed "advocacy" if it presents a clear plea for action, and thus speech
that is merely informative is not covered by the Act.
3. Finally, it must be clear what action is advocated. Speech cannot be "express advocacy of the election
or defeat of a clearly identified candidate" when reasonable minds could differ as to whether it
encourages a vote for or against a candidate or encourages the reader to take some other kind of action.
(emphasis supplied throughout)
4. (Although the court didn't spell the 4th one out: the speech must identify clearly the subject candidate.
That is a given under Buckley.)
Thus, express advocacy is speech that is unmistakable and unambiguous, suggestive of only one
plausible meaning, containing a clear plea for action and it must be clear what action is advocated: vote
for or against a [clearly identified] candidate. That sounds a lot like the functional equivalent of the
"magic words." But, at least, the Ninth Circuit opened the door to consideration of context in express
advocacy determinations. Other federal courts, however, have not chosen to walk through that door.
Wisconsin codified the express advocacy test in ss.11.01(6), (7) and (16), Stats., which provide that both
"contributions" and "disbursements" must be made for "political purposes" and that "political purposes"
includes (but, by the statute's own language, is not to be limited to) "The making of a communication
which expressly advocates the election, defeat, recall or retention of a clearly identified candidate or a
particular vote at a referendum." To further clarify which disbursements are subject to campaign
finance regulation, the Elections Board adopted Wis. Adm. Code ElBd Rule 1.28(2)(c), which provides:
(2) Individuals other than candidates and committees other than political committees are subject
to the applicable disclosure-related and record-keeping-related requirements of ch.11 Stats., only
when they:
Susan Armacost
William S. Reid
June 21, 2000
Page 6
(c) Make expenditures for the purpose of expressly advocating the election or defeat of a clearly
identified candidate.
(emphasis supplied)
Note that the rule did not include, or make reference to, the "magic words" test.
The Board's application of the express advocacy test became the subject of litigation in 1996, when
several non-registrants spent money to comment (positively or negatively) on the views, positions or
voting records of specific candidates. In WMC v. State Elections Board, 227 Wis.2d 650 (1999), the
State Elections Board made a determination that the defendant, WMC, a non-registrant, had paid for
communications that contained express advocacy, notwithstanding that the text of those communications
did not contain any of the eight terms of Footnote 52 (or even any equivalent of the terms in Footnote
52). When WMC failed to comply with registration and reporting under ch.11, Stats., as ordered by the
Elections Board, the Board sought to enforce its order in circuit court.
After the Dane County Circuit Court dismissed the Elections Board's complaint on, essentially, due
process grounds, the Wisconsin Supreme Court upheld the trial court's dismissal on the ground that the
Board was attempting to do retroactive rulemaking by making a determination of express advocacy
based on context. The Wisconsin Supreme Court said that the Board may not make a determination of
express advocacy, (and thereby impose campaign finance regulation), based on the context in which
speech is uttered or a communication is made -- unless before making that determination the legislature
enacts a statute or the Elections Board adopts a rule spelling out that context-based test.
The Court added its opinion that the legislature or the Board may be able to craft a context-oriented
express advocacy rule that may be able to pass constitutional muster, but that that rule may only be
applied prospectively:
We stress that this holding places no restraints on the ability of the legislature and the Board to define
further a constitutional standard of express advocacy to be prospectively applied. We encourage them
to do so, as we are well aware of the types of compelling state interests which may justify some very
limited restrictions on First and Fourteenth Amendment rights. (at p.32)
But the Court also qualified any attempt to define "express advocacy" with the proviso that any
communication that meets that definition must contain "explicit words of advocacy of election or defeat
of a candidate":
Consistent with this opinion, we note that any definition of express advocacy must comport with the
requirements of Buckley and MCFL and may encompass more than the specific list of "magic words" in
Buckley footnote 52, but must, however, be "limited to communications that include explicit words of
advocacy of election or defeat of a candidate." (at p.33) (Emphasis supplied)
The Elections Board did attempt, in Clearinghouse Rule 99-150, to promulgate a rule clarifying
determinations of express advocacy, but the rule was not context-based. That rule adopted the eight
terms of Footnote 52 as examples of express advocacy and added that the term "express advocacy" also
Susan Armacost
William S. Reid
June 21, 2000
Page 7
included the functional equivalent of any of those eight terms. The standing committees of the
Wisconsin Legislature objected to the Board's rule and the rule was referred to the Legislature's Joint
Committee for Review of Administrative Rules (JCRAR). JCRAR also objected to the rule and
introduced a bill amending s.11.06(2) and creating ss.11.01(13) and (20) and 11.01(16)(a), Stats.,
requiring reporting of certain "issue advocacy" disbursements made during the last 60 days before an
election.
Unless (and until) the legislature enacts the legislation recommended by JCRAR, however, the standard
applicable in Wisconsin is the one that was applicable before the WMC case: expenditures are subject to
regulation on the basis of the message they purchase only if the message expressly advocates the
election or defeat of a clearly identified candidate. The Board believes that that standard means that,
even without a rule, a message that does not include some form of the "magic words," or their
equivalents, is not subject to campaign finance regulation.
Looking at the materials included with WRL's opinion request, Items (1), (3), (4), (6), (7), and (8) do not
include any of the "magic words" or any equivalent of them. Even under the Furgatch test, these items
contain no "plea to action" whatsoever, let alone a "clear plea". That means that not only do they not
urge the reader or listener or viewer to vote one way or another, they do not urge the reader or listener or
viewer to do anything. Consequently, to paraphrase the Court in WMC, they do not "include explicit
words of advocacy of election or defeat of a candidate," and are not subject to campaign finance
regulation (based on their text alone).
Items (2) and (5) of the WRL opinion request include the following language that suggests a call to
action, but may stop short of express advocacy:
Item (2)
The November 3 election offers a clear choice between candidates running in your area. .
You can truly make a difference for the women harmed by abortion and for the unborn children
whose beating hearts must not be silenced.
BE INFORMED.
MAKE A COMPASSIONATE CHOICE.
This language asks that the reader/voter make a compassionate choice on November 3: and suggests that
the compassionate choice is to vote pro-life. The plea to action is clear; the course of action is not.
Item (5)
Now he wants to be re-elected to the State Assembly. Can unborn children, parents and taxpayers
afford two more years of Virgil Roberts?
This language is similar to the "Don't let him do it" in Furgatch, except it is in rhetorical form rather
than in the imperative. The only way to avoid two more years of Virgil Roberts is to vote him out on
November 3, but that conclusion is implied not expressed.
Susan Armacost
William S. Reid
June 21, 2000
Page 8
Whether either one of these communications "includes explicit words of advocacy of election or defeat
of a candidate may depend on the political orientation of the reader, but they are closer than the other
five.
B. Coordination of Expenditures vs. Independent Expenditures
In striking down limits on independent expenditures -- because of the absence of the potential quid pro
quo that justified restrictions on contributions -- the Buckley Court recognized an exception to that
approach for money spent on communications that are "coordinated" with a candidate or his campaign
or agents. In this tension between permissible contribution limits and impermissible independent
expenditure limits, the court recognized the necessity of regulating expenditures that were so
"coordinated" with a campaign that they ceased to be independent and were enough like contributions to
be treated as such:
The parties defending [the cap on expenditures by individuals] contend that [the cap] is necessary to
prevent would-be contributors from avoiding the contribution limitations by the simple expedient of
paying directly for media advertisements or for other portions of the candidate's campaign activities
Yet such controlled or coordinated expenditures are treated as contributions rather than expenditures
under the Act. Section 608(b)'s contribution ceilings rather than s.608(e)(1)'s independent expenditure
limitation prevent attempts to circumvent the Act through prearranged or coordinated expenditures
amounting to disguised contributions. By contrast, s.608(e)(1) limits expenditures for express advocacy of
candidates made totally independently of the candidate and his campaign.
(Buckley at pp.46-47, emphasis supplied)
The Court did not, however, provide a definition of, or standard for, "prearranged or coordinated
expenditures amounting to disguised contributions." Furthermore, the Buckley court did not
distinguish coordinated express advocacy from coordinated issue advocacy or even speak to the
question whether one is distinguishable from the other with respect to government's authority to
regulate.
The federal courts have begun to look at the issue of "coordinated" issue advocacy. In 1997, the
United States Court of Appeals First Circuit, in Clifton v. Federal Election Commission 114 F. 3d
1309, held that the FEC's regulations restricting corporate contacts with candidates (or the
candidate's agents) with respect to certain forms of issue advocacy, (voter guides and voting
records), were beyond the FEC's authority under the Federal Election Campaign Act (FECA). "The
regulation on voter guides provided that either a corporation or union publishing a guide must have
no contact at all with any candidate or political committee regarding the preparation, contents and
distribution of the voter guide or, if there is such contact, (1) it must be only through written
questions and written responses, (2) each candidate must be given the same prominence and space in
the guide, and (3) there must be no "electioneering" message conveyed by any scoring or rating
system used, or otherwise." (at p.1311)
Starting with the FEC rule requiring substantially equal space and prominence, we begin with the
proposition that where public issues are involved, government agencies are not normally empowered to
Susan Armacost
William S. Reid
June 21, 2000
Page 9
impose and police requirements as to what private citizens may say or write. Commercial labeling aside,
the Supreme Court has long treated compelled speech as abhorrent to the First Amendment whether the
compulsion is directed against individuals or corporations. (at p.1313)
It seems to us no less obnoxious for the FEC to tell the Maine Committee how much space it must devote
in its voter guides to the views of particular committees. We assume a legitimate FEC interest in
preventing disguised contributions; The point is that the interest cannot normally be secured by
compelling a private entity to express particular views or by requiring it to provide "balance" or equal
space or an opportunity to appear. (at pp.1313-1314)
The other rule principally at issue is the limitation on oral contact with candidates. We think that this is
patently offensive to the First Amendment in a different aspect: it treads heavily upon the right of citizens,
individual or corporate, to confer and discuss public matters with their legislative representatives or
candidates for such office. As we have explained, the regulations bar non-written contact regarding the
contents, not merely the preparation and distribution of voter guides and voting records; thus inquiries to
candidates and incumbents about their positions on issues like abortion are a precise target of the FEC's
rules as applied here. (at p.1314)
It is hard to find direct precedent only because efforts to restrict this right to communicate freely are so
rare. But we think that it is beyond reasonable belief that to prevent corruption or illicit coordination, the
government could prohibit voluntary discussions between citizens and their legislators and candidates on
public issues. The only difference between such an outright ban and the FEC rule is that the FEC permits
discussion so long as both sides limit themselves to writing. Both principle and practicality make this an
inadequate distinction. (at p.1314)
It is no business of executive branch agencies to dictate the form in which free citizens can confer with
their legislative representatives. Further, the restriction is a real handicap on intercourse: the nuances of
positions and votes can often be discerned only through oral discussion; as any courtroom lawyer knows,
stilted written interrogatories and answers are no substitute for cross-examination. A ban on oral
communication, solely for prophylactic reasons, is not readily defensible. (at p.1314)
The First Circuit was not saying that issue advocacy could be coordinated and it was not even saying
that the FEC could not promulgate a rule prohibiting coordination of issue advocacy. What the court
was saying was that the FEC could not attempt to prevent coordination with a prophylactic rule against
all oral contact between candidates and committees who make expenditures after that contact. In other
words, the FEC may promulgate a rule proscribing illicit coordination, but the rule before the court was
not that rule. The further implication of this decision is that the outright ban on any "consultation,
cooperation or action in concert" such as appears in the Wisconsin Statute, s.11.06(7), Stats., (and which
is identical to the language of the federal statute), may be unenforceable. Some level of contact between
a candidate and a committee making expenditures is permissible.
The Supreme Court has said, in discussing related statutory provisions, that expenditures directed by or
"coordinated" with the candidate could be treated as contributions. See Buckley v. Valeo.; but
"coordination" in this context implied some measure of collaboration beyond a mere inquiry as to the
position taken by a candidate on an issue. (at p.1311)
Susan Armacost
William S. Reid
June 21, 2000
Page 10
What constitutes "coordination," however, remained for other courts and other decisions. Recently, in
Federal Election Commission v. The Christian Coalition, 52 F. Supp. 2d 45, (August, 1999), the United
States District Court for the District of Columbia addressed the question of coordinated expenditures,
generally, and coordinated "issue advocacy" in particular. The court found that coordinated issue
advocacy was subject to campaign finance regulation, but that "the standard for coordination must be
restrictive, limiting the universe of cases triggering potential enforcement actions to those situations in
which coordination is extensive enough to make the potential for corruption through legislative quid pro
quo palpable without chilling protected contact between candidates and corporations and unions." (at
p.91) The court tried to strike a balance between the position of the Coalition that only coordinated
expenditures for the purpose of express advocacy could be subject to regulation and the position of the
FEC that any "consultation between a potential spender and a federal candidate's campaign organization
about the candidate's plans, projects, or needs renders any subsequent expenditures made for the purpose
of influencing the election "coordinated" contributions." (at p.92)
While the FEC's approach would certainly address the potential for corruption in the above-described
scenario, it would do so only by heavily burdening the common, probably necessary, communications
between candidates and constituencies during an election campaign. (at p.96)
I take from Buckley and its progeny the directive to tread carefully, acknowledging that considerable
coordination will convert an expressive expenditure into a contribution but that the spender should not be
deemed to forfeit First Amendment protections for her own speech merely by having engaged in some
consultations or coordination with a federal candidate. (at p.97)
A narrowly tailored definition of expressive coordinated expenditures must focus on those expenditures
that are of the type that would be made to circumvent the contribution limitations. (at pp.97-98)
That portion of the FEC's approach which would treat as contributions expressive coordinated
expenditures made at the request or suggestion of the candidate or an authorized agent is narrowly
tailored. The fact that the candidate has requested or suggested that a spender engage in certain speech
indicates that the speech is valuable to the candidate, giving such expenditures sufficient contribution-like
qualities to fall within the Act's prohibition on contributions. (at p.98)
In the absence of a request or suggestion from the campaign, an expressive expenditure becomes
"coordinated" where the candidate or her agents can exercise control over, or where there has been
substantial discussion or negotiation between the campaign and the spender over, a communication's: (1)
contents; (2) timing; (3) location, mode, or intended audience (e.g., choice between newspaper or radio
advertisement); or (4) "volume" (e.g., number of copies of printed materials or frequency of media spots).
Substantial discussion or negotiation is such that the candidate and the spender emerge as partners or
joint venturers in the expressive expenditure, but the candidate and spender need not be equal partners. .
(at pp.98-99)
At about the same time, (November, 1999), the Wisconsin Court of Appeals, in Wisconsin Coalition for
Voter Participation et al. v. State Elections Board (No.99-2574), was asked to review a similar issue:
whether the State Elections Board could investigate the alleged "coordination" of a communication, (and
the expenditures for it), between a candidate's campaign and a committee called Wisconsin Coalition for
Susan Armacost
William S. Reid
June 21, 2000
Page 11
Voter Participation, notwithstanding that the communication did not (concededly) expressly advocate
the election or defeat of a clearly identified candidate.
The Court of Appeals agreed with the Dane County Circuit Court, (from whose decision the appeal was
being taken), that "express advocacy is not an issue in this case." (at p.6) The Court of Appeals found
that while (under Buckley) "independent expenditures that do not constitute express advocacy of a
candidate are not subject to regulation, contributions to a candidate's campaign must be reported
whether or not they constitute express advocacy."(at p.7)
Contrary to plaintiff's assertions, then, the term "political purposes" is not restricted by the cases, the
statutes or the code, to acts of express advocacy. It encompasses many acts undertaken to influence a
candidate's election -- including making contributions to an election campaign. (at p.8)
Under Wis. Adm. Code s.ElBd 1.42(2), a voluntary committee such as the coalition is prohibited from
making expenditures in support of, or opposition to, a candidate if those expenditures are made "in
cooperation or consultation with any candidate or committee of a candidate and in concert with, or
at the request or suggestion of, any candidate or committee " and are not reported as a contribution
to the candidate. These provisions are consistent with the federal campaign finance laws approved by the
Supreme Court in Buckley -- laws which, like our own, treat expenditures that are "coordinated" with, or
made "in cooperation with or with the consent of a candidate or an authorized committee" as
campaign contributions. (at pp.8-9)
There is little doubt that had the coalition given 354,000 blank paid postcards to the Wilcox campaign
committee, allowing it to put whatever message it wished on them, this would have been a reportable
contribution. . If there was consultation or coordination with the Wilcox campaign, it makes no
difference that the chosen message was printed by the Coalition rather than by the campaign itself. As we
have noted above, we think the Board was correct in observing (in one of its briefs to the circuit court)
that "[i]f the mailing and the message were done in consultation with or coordinated with the Justice
Wilcox campaign, the [content of the message] is immaterial." (at pp.9-10)
In finding that "if the mailing and the message were done in consultation with or coordinated with the
Justice Wilcox campaign, the [content of the message] is immaterial," the court did not determine any
standard for "coordination" other than to recite the Wisconsin Statutory standard set forth in the oath for
independent disbursements, (s.11.06 (7), Stats.). That standard is that the committee or individual
making the disbursements does not act in cooperation or consultation with, or act in concert with, or at
the request or suggestion of, any candidate or agent or authorized committee of a candidate who is
supported by the disbursements.
The conclusion that appears to follow from these cases is that speech which does not expressly advocate
the election or defeat of a clearly identified candidate may, nevertheless, be subject to campaign finance
regulation if the following two elements are present: (1) the speech is made for the purpose of
influencing voting at a specific candidate's election; and (2) the speech (and or the expenditure for it?) is
coordinated with the candidate or his/her campaign. The Courts seemed to be willing to merge express
advocacy with issue advocacy if "coordination" between the spender and the campaign is sufficient that
Susan Armacost
William S. Reid
June 21, 2000
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the potential for a quid pro quo is immediate and apparent and, therefore, that the expenditure ought to
be treated as a contribution.
The Wisconsin Court of Appeals did not need to establish a standard for "coordination" because the
proceeding before it was not one to determine whether "coordination" occurred, but a proceeding to
determine whether the Elections Board could investigate whether "coordination" had occurred. But
putting the standard established in Christian Coalition together with Wisconsin's statutory language one
derives a standard as follows: coordination is sufficient to treat a communication (or the expenditure for
it) as a contribution if:
The communication is made at the request or suggestion of the campaign (i.e., the candidate or
agents of the candidate); or, in the absence of a request or suggestion from the campaign, if the
cooperation, consultation or coordination between the two is such that the candidate or his/her
agents can exercise control over, or where there has been substantial discussion or negotiation
between the campaign and the spender over, a communication's: (1) contents; (2) timing; (3)
location, mode, or intended audience (e.g., choice between newspaper or radio advertisement); or
(4) "volume" (e.g., number of copies of printed materials or frequency of media spots).
Substantial discussion or negotiation is such that the candidate and the spender emerge as
partners or joint venturers in the expressive expenditure, but the candidate and spender need not
be equal partners.
Turning to the eight items WRL has included, all eight would appear to be made for the purpose of
influencing voting at a specific candidate's election (if one concedes that the purpose of informing voters
of a candidate's position on an issue or issues is to influence their voting). Consequently, under the
above standard, with respect to such communications, WRL would have to refrain from "discussion or
negotiation with the campaign over, a communication's: (1) contents; (2) timing; (3) location, mode, or
intended audience (e.g., choice between newspaper or radio advertisement); or (4) "volume" (e.g.,
number of copies of printed materials or frequency of media spots) such that the candidate and the
spender (WRL) emerge as partners or joint venturers in the expressive expenditure, albeit not equal
partners." And, of course, WRL could not act at the request or suggestion of the candidate or the
candidate's agents.
Another approach to the same subject matter is to divide it into two categories: contacts between a
campaign and an independent committee in which 1) the campaign is the speaker and 2) the committee
is the speaker. Each of those two categories would be divided into two sub-categories: 1) discourse on
philosophy, views and interests, and positions on issues and 2) discourse on campaign strategy.
In all of the cases discussed above, including Buckley, protection of a candidate's right to meet and
discuss, with any person (including corporate persons), his or her philosophy, views and interests, and
positions on issues (including voting record), is absolute. As the First Circuit said in Clifton:
[as to] the limitation on oral contact with candidates. We think that this is patently offensive to the
First Amendment in a different aspect: it treads heavily upon the right of citizens, individual or corporate,
Susan Armacost
William S. Reid
June 21, 2000
Page 13
to confer and discuss public matters with their legislative representatives or candidates for such office.
(p.1314)
A candidate's (or campaign's) right to discuss campaign strategy, however, is not so absolute. It is the
slippery slope and the best advice is to avoid (or, at the very least, minimize) it. The closer that such
discussion comes to providing details that will facilitate or optimize the independent committee's
expenditures, the more that discussion "dissolves in practical application" into coordination. Providing
a committee with campaign literature or an 8 x 10 glossy picture is one thing, but providing a committee
with an itinerary of media purchases and appearances, including text, is another.
Similarly, an independent committee's right to meet and discuss its philosophy, views and interests, and
positions on issues, is probably equally absolute to that of the candidate. But the right of the committee
to discuss its strategy for the campaign probably doesn't exist if the committee wishes to remain
independent. A campaign has no need to know that information other than for the purpose of
coordination.
C. Communications to Restricted Class (Members, Shareholders and Subscribers)
Under s.11.29(1), Stats., a voluntary association, like WRL, may communicate a candidate endorsement,
a position on a referendum or an explanation of the association's views and interests with its members to
the exclusion of all others without subjecting that communication to campaign finance regulation. In
Op. El. Bd. 88-4, the Elections Board issued a formal opinion that says that the statute will be construed
strictly. That means the communication's distribution must be limited to the association's members,
shareholders and subscribers to the exclusion of all others. A distribution pattern that appears to go
beyond the restricted class may render the protection of s.11.29(1), Stats., inapplicable. According to
that Opinion, if the communication's message goes beyond a candidate endorsement, a position on a
referendum or an explanation of the association's views and interests, the protection of s.11.29(1), Stats.,
may not apply:
Wisconsin law prohibits corporations and cooperatives and unregistered organizations from engaging in
political activity. Section 11.38(2), Stats. The exclusions of s.11.29(1), Stats., provide an exemption from
those requirements. (p.1)
Wisconsin law clearly permits any organization to make communications to its membership.
Communications of a political nature which consist of endorsements of candidates, positions on a
referendum or an explanation of the organization's views or interests are not subject to the registration
and reporting requirements of Chapter 11, Stats. This is provided that the communications are funded
solely by the organization and the communications are limited to the members of the organization to the
exclusion of all others. Section 11.29(1), Stats. (p.1)
The exclusion from disclosure of communications with respect to endorsements and an explanation of the
organization's views or interests is designed to permit otherwise political communications by an
organization because it does not reach out to the general public. Although the communications may be
designed to influence voting, or even expressly advocate the election or defeat of a clearly identified
Susan Armacost
William S. Reid
June 21, 2000
Page 14
candidate, the communications are not subject to disclosure because the audience and activity are
restricted. (p.2)
If a candidate requests the organization to communicate to its membership, the organization may inform
its membership of candidate endorsements and an explanation of its views or interests. The views and
interests of the candidate do not qualify for the exclusion from disclosure except to the extent that the
organization utilizes them in its explanation of its views and interests. To the extent that communication
of the candidate's views and interests go beyond the statutory exclusion they are subject to disclosure and
limitation under the applicable provisions of Chapter 11, Stats. (p.2)
Communications of a political nature which go beyond the scope articulated in s.11.29(1), Stats., would
be subject to the registration and reporting requirements of Chapter 11. If the political communications
are done in cooperation or consultation with, in concert with, or at the request or suggestion of a
candidate, the communications will be subject to the contribution limits of Chapter 11. (p.1)
To be on the safe side, if an organization confines itself to communicating "a candidate endorsement, a
position on a referendum or an explanation of the association's views and interests with its members to
the exclusion of all others," pays for the communication with its own funds, and does not distribute any
candidate literature with the communication, the organization's communications will not be subject to
ch.11, Stats.
Turning to the specific items included in WRL's letter: all eight of the pieces communicate a candidate's
views, position or voting record on abortion issues but would probably qualify as either or both a
candidate endorsement or an explanation of the views and interests of the association. While it is true
that s.11.29(1), Stats., exempts communication of the association's views and interests, not a candidate's,
because the material originated with the association, the candidate's views or position set forth therein
reflect the association's opinion of those views. Generally, associations have broad latitude when
communicating material originating with the association. Associations may not, however, use this
privilege to act as a conduit for campaign literature or campaign solicitations.
II. MMAC Request
Guidelines Relative to Non-advocacy Voter Registration and Voter Participation Efforts
MMAC is also requesting the Board's opinion with respect to the association's activities in its nonregistrant capacity, not with respect to its sponsored PAC's activity. What MMAC is asking the Board,
in addition to the issues raised and discussed above, is: to what extent may an unregistered association or
other non-registrant conduct voter registration or voter participation drives without being subject to a
registration requirement or subject to other compliance requirements of ch.11, Stats.
The initial response to the opinion request from MMAC is to note that the law has not changed: a nonpartisan, candidate-non-specific voter registration or voter participation drive is not subject to the
registration and reporting requirements of ch.11, Stats. The governing statute is s.11.04, Stats., which
has not changed in many years and is quite clear in its command:
Susan Armacost
William S. Reid
June 21, 2000
Page 15
11.04 Registration and voting drives. Except as provided in s.11.25(2)(b), ss.11.05 to 11.23 and
11.26 do not apply to nonpartisan campaigns to increase voter registration or participation at any
election that are not directed at supporting or opposing any specific candidate, political party, or
referendum.
What that language is saying is that a committee of persons who engage in an effort to "raise voter
turnout" or voter registration, and who do so on a nonpartisan basis without directing their effort at
"supporting or opposing any specific candidate, political party or referendum" are not required to
comply with ss.11.05 to 11.23, Stats., (which are the registration and reporting provisions of ch.11,
Stats.), or s.11.26, Stats. ( ch.11's limit on contributions). As long as an organization confines itself to
the specific language of s.11.04, Stats., the organization would appear to have a safe harbor.
Concededly, however, some issues have arisen about the interpretation of some of the language in
s.11.04, Stats.
The litigation to which MMACs letter refers raised a controversial issue about the meaning of the term
"nonpartisan" in the statutory phrase: "nonpartisan campaigns to increase voter registration or
participation." Neither s.11.01, Stats., nor s.5.02, Stats., (the two statutory sections defining terms for
election and campaign finance purposes), defines the term "nonpartisan." The American Heritage
Dictionary defines "partisan" as follows:
Partisan - n. 1. A militant supporter of a party, cause, faction, person or idea; adj. 2. Devoted to or
biased in support of a single party or cause.
The Board believes that, at the very least, the legislature intended that an organization's message
urging citizens to register and to vote could not, within the exemption of s.11.04, Stats., exhort or
suggest that they vote to support one party or another or exhort the voter to participate in a
designated party's partisan primary. This meaning is sometimes referred to as "Partisan" with a
capital "P". The legislature could also have intended that a voter registration or participation drive,
seeking to qualify for the exclusion of s.11.04, Stats., could not be partial towards any "cause,
faction, person or idea." This is sometimes referred to as "partisan" with a lower case "p". Either
interpretation of the term "partisan" or "nonpartisan" incorporates a certain amount of redundancy
into s.11.04, Stats., because of the subsequent phrase in the statute: "that are not directed at
supporting or opposing any specific candidate, political party, or referendum."
The best way to avoid this issue is to refrain from mentioning any "party, cause, faction, person or idea"
in the text of the message communicated to the public. Instead, by confining the message to registration
and going to the polls, the meaning of the statute, and the meaning of the message, do not require
interpretation.
Finally, with respect to the "coordination" issue alluded to in your letter, suffice it to say that the
decision to conduct a voter drive and the particulars of that drive, including the funding of it, are best not
discussed with a candidate or any agent of a candidate. That does not mean that an organization may not
discuss with a candidate his or her views on issues important to the organization, but the organization is
Susan Armacost
William S. Reid
June 21, 2000
Page 16
well advised not to include in that discussion the organization's consideration of a voter drive or the
particulars of that drive.
STATE ELECTIONS BOARD
Randy Nash
Chair
CAPTION
Non-registrants, including corporations, may communicate to the general public their views about issues
and/or about a clearly identified candidate, without subjecting themselves to a registration requirement,
if the communication does not expressly advocate the election or defeat of a clearly identified candidate;
expenditures which are "coordinated" with a candidate or candidate's agent will be treated as a
contribution to that candidate; intra-association communications that are restricted to "a candidate
endorsement, a position on a referendum or an explanation of the association's views and interests"
distributed to the association's members, shareholders and subscribers to the exclusion of all others, are
exempt from ch. 11, Stats., regulation; and a non-partisan, candidate-non-specific voter registration or
voter participation drive is not subject to the registration and reporting requirements of ch.11, Stats.
EXHIBIT B
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No. 14-1822
_________________________
UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT
_________________________
ERIC OKEEFE and WISCONSIN
CLUB FOR GROWTH,
INCORPORATED,
Consolidated with Appeal Nos.

14-1888; 14-1899; 14-2006;
14-2012; 14-2023; 14-2585
Plaintiffs-Appellees,
v.
JOHN T. CHISHOLM, et al.,
Defendants-Appellants.
_________________________
Appeal from The United States District Court
for the Eastern District of Wisconsin,
Case No. 2:14-cv-00139-RTR
Rudolph T. Randa, District Court Judge,
_________________________
BRIEF OF AMICUS CURIAE
WISCONSIN GOVERNMENT ACCOUNTABILITY BOARD
IN SUPPORT OF DEFENDANTS-APPELLANTS
_________________________
LEE, KILKELLY, PAULSON &
YOUNGER, S.C.
Thomas H. Brush
Paul W. Schwarzenbart
One West Main Street, Suite 700
Madison, WI 53703-3327
(608) 256-9046
Attorneys for Amicus Curiae Wisconsin
Government Accountability Board
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RULE 26.1 DISCLOSURE STATEMENT
The full name of every party that the attorney represents in this case:
Wisconsin Government Accountability Board
The names of all law firms whose partners or associates have appeared for
the parties in this case (including proceedings in the district court or before
an administrative agency) or are expected to appear for the party in this
court:
Lee, Kilkelly, Paulson & Younger, S.C.
If the party or amicus is a corporation: N/A
(i)
Identify all its parent corporations, if any; and
(ii)
List any publicly held company that owns 10% or more of the
partys or amicus stock: N/A
Attorneys Signature: /s/ Paul W. Schwarzenbart

Date: August 8, 2014
Attorneys Printed Name: Paul W. Schwarzenbart
Address: One West Main Street, Suite 700, Madison, WI 53703-3327
i
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TABLE OF CONTENTS
Page
RULE 26.1 DISCLOSURE STATEMENT ................................................... i
TABLE OF CONTENTS .............................................................................. ii
TABLE OF AUTHORITIES ........................................................................ iv
INTEREST OF AMICUS CURIAE...............................................................1
FED. R. APP. P. 29(c)(5) STATEMENT ......................................................1
INTRODUCTION ..........................................................................................1
SUMMARY OF ARGUMENT ......................................................................3
ARGUMENT .................................................................................................5
I.
EXPENDITURES FOR PURPOSES OTHER THAN

EXPRESS ADVOCACY CAN BE SUBJECT TO
REGULATION UNDER WISCONSIN LAW IF COORDINATED
WITH A CANDIDATE ......................................................................5
A.
The Wisconsin Court of Appeals Concluded That

Coordinated Conduct Not Involving Express Advocacy
Can Be Treated As Contributions Subject To Regulation
Under Wisconsin Law ..............................................................6
B.
The GAB Has Reaffirmed That Coordinated Conduct

Not Involving Express Advocacy Can Be Regulated ..............9
C.
The Scope of the John Doe Investigation Embraced

Conduct Subject to Regulation Under Wisconsin
Law, As Reaffirmed in Op. El B. 00-2 ..................................13
ii
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D.
II.
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This Courts Recent Decision in Barland II Has No

Impact On Issues Related To Coordinated Expenditures ......17
COORDINATED ISSUE ADVOCACY IS NOT PROTECTED BY

THE FIRST AMENDMENT ............................................................20
A.
The Supreme Court Continues to Recognize That

Coordinated Expenditures Can Be Treated As Contributions
to a Candidate .........................................................................21
B.
The McCutcheon Decision Has No Bearing On The Law

As It Impacts Coordinated Expenditures ...............................26
C.
Sound Reasons Exist for the Continued Distinction

Between Independent and Coordinated Expenditures ...........29
CONCLUSION ............................................................................................32
CERTIFICATE OF COMPLIANCE ...........................................................33
CERTIFICATE OF SERVICE .....................................................................34
iii
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TABLE OF AUTHORITIES
CASES
Page(s)
Anderson v. Creighton,
483 U.S. 635, 107 S. Ct. 3034, 97 L. Ed. 2d 523 (1987) .............................27
Austin v. Michigan Chamber of Commerce,
494 U.S. 652, 110 S. Ct. 1391, 108 L. Ed. 2d 652 (1990) ...........................22
Buckley v. Valeo,
424 U.S. 1, 96 S. Ct. 612, 46 L. Ed. 2d 659 (1976) ............................. passim
Citizens United v. Fed. Election Commn,
558 U.S. 310, 130 S. Ct. 876, 175 L. Ed. 2d 753 (2010) ..................... passim
Clifton v. Federal Election Commission
114 F.3d 1309 (1st Cir. 1997) .....................................................................13
Colorado Republican Fed. Campaign Comm. v. Fed. Election Commn,
518 U.S. 604, 116 S. Ct. 2309, 135 L. Ed. 2d 795 (1996) ...........................23
Ctr. for Individual Freedom v. Madigan,
697 F.3d 464 (7th Cir. 2012) ..................................................................26, 30
Fed. Election Commn v. Colorado Republican Fed. Campaign Comm.,
533 U.S. 431, 121 S. Ct. 2351, 150 L. Ed. 2d 461 (2001) ...........................23
Fed. Election Commn v. Natl Conservative Political Action Comm.,
470 U.S. 480, 105 S. Ct. 1459, 84 L. Ed. 2d 455 (1985) .......................22, 28
Federal Election Commission v. The Christian Coalition,
52 F.Supp.2d 45 (D.D.C. 1999) ........................................................... passim
McConnell v. FEC,
540 U.S. 93, 124 S. Ct. 619, 157 L. Ed. 2d 491 (2003) ...........................3, 24
iv
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McCutcheon v. Fed. Election Commn,

___ U.S. ___, 134 S. Ct. 1434, 188 L. Ed. 2d 468 (2014) ................... passim
McIntyre v. Ohio Elections Commn,
514 U.S. 334, 115 S. Ct. 1511, 131 L. Ed. 2d 426 (1995) .................... 22- 23
Nixon v. Shrink Missouri Govt PAC,
528 U.S. 377, 120 S. Ct. 897, 145 L. Ed. 2d 886 (2000) .............................23
Shays v. Fed. Election Comm'n
528 F.3d 914 (D.C.Cir. 2008) .............................................................. 24-25,
Wisconsin Coal. for Voter Participation, Inc. v. State Elections Bd.,
231 Wis. 2d 670, 605 N.W.2d 654 (Ct.App. 1999) .............. 6, 10, 11, 14, 15
Wisconsin Right To Life, Inc. v. Barland,
751 F.3d 804 (7th Cir. 2014) ................................................................ passim
Wis. Right to Life State Political Action Comm. v. Barland,
664 F.3d 139 (7th Cir. 2011) ............................................................18, 19, 26
WISCONSIN LAWS AND STATUTES
2007 Wisconsin Act 1 ..............................................................................5, 10
Opinion El Bd 00-2 .............................................................................. passim
Wis.Adm.Code ElBd [GAB] 1.20 .........................................................8, 31
Wis.Adm.Code ElBd [GAB] 1.42 ...............................................................8
Wis. Stat. 5.05 ...................................................................................1, 9, 15
Wis. Stat. 11.01 .................................................................................2, 8, 18
Wis. Stat. 11.04 ...........................................................................................7
Wis. Stat. 11.06 ...........................................................................................7
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Wis. Stat. 11.10 .............................................................................14, 15, 19

FEDERAL LAW AND STATUTES
Bipartisan Campaign Reform Act of 2002 sec. 202 ...............................24, 25
Federal Election Campaign Act of 1971 sec. 608 ..........................................4
Federal Election Campaign Act of 1971 sec. 9012 ......................................22
Fed. R. App. P. 29 ..........................................................................................1
IRS Code 501 [26 U.S.C. 501] ...............................................................17
42 U.S.C. 1983 ..................................................................................2, 5, 16
OTHER AUTHORITIES
B.A. Smith, Super Pacs and the Role of Coordination in Campaign
Finance Law (herein, Smith), 49 Willamette L. Rev. 603 (2013) 21-22, 29
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IDENTITY AND INTEREST OF AMICUS CURIAE

The Wisconsin Government Accountability Board (GAB) is
responsible for the administration and enforcement of the election and
campaign finance laws of the state of Wisconsin. Wis. Stat. 5.05(1). The
GABs role is not to advocate what the law should be, but rather, as a nonpartisan executive branch agency, to faithfully administer and enforce what
it believes the law requires. The GABs interest in this matter is to assist the
court in determining whether coordinated issue advocacy can be subject
to regulation under the Wisconsin campaign finance law and, if so, whether
the First Amendment to the United States Constitution bars enforcement of
such regulations.
FED. R. APP. P. 29(c)(5) STATEMENT
Pursuant to Fed. R. App. P. 29(c)(5), the GAB affirms that no
counsel for a party authored this brief in whole or in part, no such counsel
or party made a monetary contribution intended to fund the preparation or
submission of this brief, and no person other than the GAB or its counsel
made a monetary contribution to the preparation or submission of this brief.
INTRODUCTION
Plaintiffs-Respondents Eric OKeefe and Wisconsin Club for
1
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Growth (collectively, WCFG) asserted claims under 42 U.S.C. 1983.

They alleged that Defendant-Appellant John Chisholm and others
(collectively, Defendants) violated WCFGs First Amendment rights by
undertaking a John Doe investigation relative to their conduct during
Wisconsin election campaigns in 2011 and 2012. WCFGs complaint
alleges that:
Defendants are basing their current phase of the
investigation on a theory of campaign coordination
that would make nearly all political advocacy in
Wisconsin subject to government scrutiny and
regulation. In particular, their theory is that Wis.
Stat. 11.01(16), which defines political
purposes for purpose of Wisconsin campaignfinance law, reaches communications other than
those that are express advocacy or its functional
equivalent. On that basis, Defendants assert that
speech and speech expenditures coordinated with a
campaign or campaign committee are subject to
Wisconsin laws limiting contributions to campaigns
and mandating disclosure.
See Complaint, 95; Defendants Separate Appendix (Sep. App.) 29-30

(emphasis added). WCFG alleged this theory of campaign coordination
was flawed because WCFG only engaged in issue advocacy. Id., 99; Sep.
App. 30-31.
In entering a preliminary injunction which bars Defendants from
continuing the investigation, the District Court agreed with WCFG and
2
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concluded that:
The defendants are pursuing criminal charges
through a secret John Doe investigation against the
plaintiffs for exercising issue advocacy speech
rights that on their face are not subject to the
regulations or statutes the defendants seek to
enforce. This legitimate exercise of OKeefes
rights as an individual, and WCFGs rights as a
501(c)(4) corporation, to speak on the issues has
been characterized by the defendants as political
activity covered by Chapter 11 of the Wisconsin
Statutes, rendering the plaintiffs a subcommittee of
the Friends of Scott Walker (FOSW) and
requiring that money spent on such speech be
reported as an in-kind campaign contribution. This
interpretation is simply wrong.
R. 181:12-13.1 GAB supports Defendants appeals from the District Courts

orders denying their motions to dismiss and granting the preliminary
injunction because it believes the District Court erroneously construed
Wisconsin law and erroneously extended absolute First Amendment
protection to coordinated issue advocacy.
SUMMARY OF ARGUMENT
Since Buckley v. Valeo, 424 U.S. 1, 96 S. Ct. 612, 46 L. Ed. 2d 659
(1976), superseded by statute as stated in McConnell v. FEC, 540 U.S. 93,
124 S. Ct. 619, 157 L. Ed. 2d 491 (2003), the United States Supreme Court
1
Scott Walker was, at all times material, the Governor of the state of Wisconsin. In
2012, Governor Walker was involved in a heated recall election campaign. At all
times material, FOSW was Governor Walkers official campaign committee.
3
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has recognized that the First Amendment limits the ability to regulate
expenditures for political purposes by independent speakers. Buckley held
that expenditure limits did not apply unless an independent speaker
engaged in what came to be known as express advocacy. Id., 424 U.S. at
45. However, the Buckley Court also noted that expenditures controlled or
coordinated with candidates were treated as contributions rather than
expenditures under the Federal Election Campaign Act of 1971 (FECA)
and that such treatment prevent[ed] attempts to circumvent the Act
through prearranged or coordinated expenditures amounting to disguised
contributions. Id. at 46-47, citing FECA sec. 608(b).
In denying Defendants motion to dismiss and entering the
preliminary injunction, the District Court disregarded the distinction
between
independent
expenditures
and
coordinated
expenditures
recognized in Buckley and its progeny. For that reason, GAB recommends
that the court reverse the District Courts Decisions and Orders and in
doing so clarify that purported independent groups have no absolute First
Amendment right to engage in coordinated issue advocacy with a
candidate, because in doing so such groups have made contributions to the
candidate, making them no longer independent.
4
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ARGUMENT
Because the District Court first concluded that WCFGs conduct was
not subject to the regulations or statutes Defendants sought to enforce, this
brief initially addresses the Wisconsin statutes and regulations before
turning to the First Amendment issues which bear upon Defendants
potential liability to WCFG under 42 U.S.C. 1983.
I.
EXPENDITURES FOR PURPOSES OTHER THAN EXPRESS

ADVOCACY CAN BE SUBJECT TO REGULATION UNDER
WISCONSIN LAW IF COORDINATED WITH A
CANDIDATE.
The District Court did not explain the basis for its conclusion that
WCFGs conduct was not subject to the regulations or statutes the

defendants seek to enforce. R. 181:12-13. In reaching that conclusion, the
District Court did not acknowledge contrary and indistinguishable
Wisconsin case law. Nor did it acknowledge the opinions of the GAB and
its predecessor, the Wisconsin State Elections Board (SEB),2 to the
contrary.
As this Court noted in Wisconsin Right To Life, Inc. v. Barland, 751 F.3d 804, 809
(7th Cir. 2014), citing 2007 Wis. Act 1 1, the GAB was created in 2007 to replace
the State Elections Board as the agency responsible for administering Wisconsins
campaign-finance and election laws.
5
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The Wisconsin Court of Appeals Concluded That

Coordinated Conduct Not Involving Express Advocacy
Can Be Treated As Contributions Under Wisconsin
Law.
In Wisconsin Coal. for Voter Participation, Inc. v. State Elections

Bd. (Wisconsin Coalition), 231 Wis. 2d 670, 605 N.W.2d 654 (Ct.App.
1999), the Wisconsin Court of Appeals concluded that conduct
indistinguishable from that at issue here could be a proper subject of
investigation under Wisconsins campaign finance law. That matter
involved the plaintiff Coalition raising and expending funds for purposes of
printing and mailing a postcard to Wisconsin residents encouraging them to
vote in an upcoming Wisconsin Supreme Court election. The Coalitions
postcard stated:
Your choices for the Supreme Court are:
Jon Wilcox: 5 years experience on the Wisconsin
Supreme Court; 17 years as a judge.
Walt Kelly: 25 years as a trial lawyer; ACLU
special recognition award recipient.
Let your voice be heard! These issues are too
important to ignore. Your vote is critical. Please
remember to vote next Tuesday, April 1st.
605 N.W.2d at 657. Like WCFG here, the Coalition and other plaintiffs
sued the GABs predecessor, the SEB, seeking to enjoin the SEB from
investigating connections between the Coalition and the campaign
committee for Justice Wilcox with respect to the postcard mailing. Id. at
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656. Relying on Buckley, the Coalition argued, as WCFG does here, that its
speech was protected by the First Amendment and could not be regulated
unless it constituted express advocacy on behalf of a particular candidate.
Id. at 657-58.
The circuit court rejected the plaintiffs First Amendment argument,
and the court of appeals affirmed. While agreeing that under Buckley
independent expenditures that do not constitute express advocacy of a
candidate are not subject to regulation, and [Wis. Stat.] 11.04 says
pretty much the same thing, the court of appeals hastened to add that
neither Buckley nor 11.04 limit the states authority to regulate or restrict
campaign contributions. 605 N.W.2d at 658-59. The court noted that while
disbursements made by independent organizations which do not constitute
a contribution to any candidate are required to be reported only if the
purpose is to expressly advocate the election or defeat of a clearly identified
candidate, citing Wis. Stat. 11.06(2), by contrast, Wis. Stat. 11.06(1)
provides that contributions to a candidates campaign must be reported
whether or not they constitute express advocacy. Id. at 659 (emphasis
added). Thus, whether the plaintiffs conduct was a proper subject of the
SEBs investigation turned on whether the expenditures for the cost of
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printing and mailing the postcards could constitute a contribution under

the Wisconsin campaign finance law. Id. (The result is that if the mailing
was a contribution which is what the Board is seeking to determine it
was illegal regardless of how one might interpret the postcards language.)
In concluding the investigation could go forward, the court of
appeals relied on the statutes and regulations defining contributions and
in kind contributions. 605 N.W.2d at 659, citing Wis. Stat. 11.01(6)(a)
and Wis.Adm.Code ElBd 1.20(1)(e).3 The court also noted that under
Wis.Adm.Code ElBd 1.42(2),4 a committee such as the plaintiff Coalition
was prohibited from making expenditures in support of, or in opposition to,
a candidate if those expenditures are made in cooperation or consultation
with any candidate or committee of a candidate and in concert with,
or at the request or suggestion of, any candidate or committee and are
not reported as a contribution to the candidate. The court noted that these
Wisconsin Adm.Code ElBd 1.20(1)(e) defined an in-kind contribution as a

disbursement by a contributor to procure a thing of value or service for the benefit
of a [candidate or committee] who authorized the disbursement. This regulation
remains the law of Wisconsin, although renumbered as GAB 1.20(1)(e), in
connection with GAB assuming the powers, duties and responsibilities of the SEB.
See http://docs.legis.wisconsin.gov/code/admin_code/gab/1.
Like ElBd 1.20, Wis.Adm.Code ElBd 1.42(2) was renumbered as part of the
GAB regulations in connection with the GAB assuming the roles of the SEB.
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provisions are consistent with the federal campaign finance laws approved
by the Supreme Court in Buckley laws which, like our own, treat
expenditures that are coordinated with, or made in cooperation with or
with the consent of a candidate or an authorized committee as campaign
contributions. Id. at 659-60, citing Buckley, 424 U.S. at 46-47, 78. The
court added that we think the Board was correct in observing (in one of its
briefs to the circuit court) that [i]f the mailing and the message were done
in consultation with or coordinated with the Justice Wilcox campaign, the
[content of the message] is immaterial. Id. at 660. And lastly, the court
rejected the plaintiff Coalitions claims that the investigation invaded its
members First Amendment rights and that the statutes and regulations
were too vague and indefinite to be applied to the postcard preparation and
mailing. Id. at 660-62.
B.
The GAB Has Reaffirmed That Coordinated Conduct Not

Involving Express Advocacy Can Be Regulated.
The SEB, like the GAB, was authorized to issue advisory opinions
regarding the election and campaign finance laws which it administers and
enforces. See Wis. Stat. 5.05(6a) (The board shall review a request for an
advisory opinion and may issue a formal written or electronic advisory
opinion to the person making the request.). Persons requesting such
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opinions may rely on them. Id. (No person acting in good faith upon an
advisory opinion issued by the board is subject to criminal or civil
prosecution for so acting, if the material facts are as stated in the opinion
request.) The opinions may have the force and effect of law. Id. (To have
legal force and effect, each advisory opinion issued by the board must be
supported by specific legal authority under a statute or other law, or by
specific case or common law authority.)
In the wake of the court of appeals decision in Wisconsin Coalition,
the SEB issued Opinion El Bd 00-2. This opinion was reaffirmed by the
GAB on March 26, 2008, acting pursuant to 2007 Wisconsin Act 1. Sep.
App. 120.5
Opinion El Bd 00-2 speaks directly to the coordination issue central
to this case. The summary of the opinion states that expenditures which
are coordinated with a candidate or candidates agent will be treated as a
contribution to that candidate. Sep. App. 120. At page 8 of the opinion, the
SEB set out its analysis of Coordination of Expenditures vs. Independent
A link to the text of Opinion El Bd 00-2, and the fact of its adoption by the GAB, is
found on the GABs official website at: http://gab.wi.gov/about/opinions/campaignfinance. Defendants have included a copy of Opinion El Bd 00-2 in their separate
appendix. See Sep. App. 120-35.
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Expenditures under Buckley. Id. at 127. The opinion notes that the
Buckley court did not distinguish coordinated express advocacy from
coordinated issue advocacy or even speak to the question whether one is
distinguishable from the other with respect to governments authority to
regulate. Id. The opinion directly quotes Buckley as authority for the
proposition that:
controlled or coordinated expenditures are
treated as contributions rather than expenditures
under the Act. Section 608(b)s contribution
ceilings rather than s.608(e)(1)s independent
expenditure limitation prevent attempts to
circumvent the Act through prearranged or
coordinated expenditures amounting to disguised
contributions.
Id., quoting Buckley, 424 U.S. at 46-47. Acknowledging that an outright

ban on any consultation, cooperation or action in concert between
candidates and committees that make expenditures might be unenforceable,
the opinion turns to the standard developed in Federal Election
Commission v. The Christian Coalition, 52 F.Supp.2d 45 (D.D.C. 1999),
which addressed the issue of coordinated expenditures generally and
coordinated issue advocacy particularly. Sep. App. at 129. After first
discussing the court of appeals decision in Wisconsin Coalition and then
putting together the standard established in Christian Coalition with
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Wisconsins statutory language, the SEB derived the following standard for
determining if coordination is sufficient to treat a communication (or the
expenditure for it) as a contribution under Wisconsin law:
The communication is made at the request or
suggestion of the campaign (i.e., the candidate or
agents of the candidate); or, in the absence of a
request or suggestion from the campaign, if the
cooperation, consultation or coordination between
the two is such that the candidate or his/her agents
can exercise control over, or where there has been
substantial discussion or negotiation between the
campaign and the spender over, a communications:
(1) contents; (2) timing; (3) location, mode, or
intended audience (e.g., choice between newspaper
or radio advertisement); or (4) volume (e.g.,
number of copies of printed materials or frequency
of media spots). Substantial discussion or
negotiation is such that the candidate and the
spender emerge as partners or joint venturers in the
expressive expenditure, but the candidate and
spender need not be equal partners.
Id. at 131.6 Under this standard, the SEB acknowledged that the protection
of a candidates right to meet and discuss, with any person (including
corporate persons), his or her philosophy, views and interests, and positions
on issues (including voting record), is absolute, but noted that [a]
candidates (or campaigns) right to discuss campaign strategy, however, is
See Christian Coalition, 52 F.Supp.2d at 92.
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not so absolute. Id. at 132.7

This standard articulated in Op. El Bd 00-2 remains the GABs view
of Wisconsin law under which expenditures for communications
coordinated with a candidate can be treated and regulated as contributions
to the candidate, subjecting the expenditures to all applicable contribution
limitations and reporting requirements. Although there are fact specific
elements to the Christian Coalition standard adopted in Op. El Bd 00-2, the
communications need not constitute express advocacy in order for the
expenditures for such communications to be treated as contributions.
C.
The Scope of the John Doe Investigation Embraced

Conduct Subject to Regulation Under Wisconsin Law, As
Reaffirmed in Op. El B. 00-2.
Defendants described the following factors as the legal predicate

for the John Doe investigation:
The Supreme Courts holding in Buckley that the First Amendment
7
In support of this distinction, the SEB cited Clifton v. Federal Election Commission,
114 F.3d 1309 (1st Cir. 1997), a case cited by the District Court in granting the
preliminary injunction. Of note, the SEB opinion explains: The First Circuit was not
saying that issue advocacy could be coordinated and it was not even saying that the
FEC could not promulgate a rule prohibiting coordination of issue advocacy. What
the court was saying was that the FEC could not attempt to prevent coordination with
a prophylactic rule against all oral contact between candidates and committees who
make expenditures after that contact. In other words, the FEC may promulgate a rule
proscribing illicit coordination, but the rule before the court was not that rule. Sep.
App. 129 (emphasis added).
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does not invalidate campaign finance laws requiring identification of

contributors and contributions;
The court of appeals holding in Wisconsin Coalition that under the
Wisconsin campaign finance law expenditures coordinated with a
candidate can be treated as in kind contributions whether or not
the expenditures involve express advocacy; and
The language of Wis. Stat. 11.10(4) providing that if a third party
acts with the cooperation of or upon consultation with a candidate
or agent or authorized committee of a candidate, or which acts in
concert with or at the request or suggestion of a candidate or agent or
authorized committee of a candidate, [it] is deemed a subcommittee
of the candidates personal campaign committee.
MTD Brief at 16-18; ECF Doc 76.8
In the John Doe investigation, the Defendants were seeking, among
These predicates are set out in Defendants joint brief in support of their appeals from
the order denying their motions to dismiss (the MTD Brief) and are based on
defendant Schmitzs Brief filed with the John Doe judge in opposition to a motion to
quash the subpoenas. Sep. App. 73-101.
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other things,9 evidence of coordinated communications similar to that at

issue in Wisconsin Coalition, supra. They were guided by the standard
governing when coordinated communications could be treated as
contributions, the type of conduct at issue in Wisconsin Coalition, clarified
by the SEB in Op. El Bd 00-2, adopting the Christian Coalition standard.
When the GAB reaffirmed Op. El Bd 00-2 on March 26, 2008, it adopted
that standard. Pursuant to Wis. Stat. 5.05(6a), that standard had the force
and effect of law. In addition, as Defendants note, Wis. Stat. 11.10(4)
provided an additional valid predicate under state law for seeking evidence
whether the parties under investigation had acted with the cooperation of
or upon consultation with a candidate or agent or authorized committee of a
candidate, or ... in concert with or at the request or suggestion of a
candidate or agent or authorized committee of a candidate. In such event,
parties such as WCFG would be deemed a subcommittee of the
candidates
personal
campaign
committee,
which
would
trigger
contribution and disbursement reporting requirements by the candidates.

These provisions of state law supported Defendants conduct in
9
The brief filed by Defendant Schmitz with the John Doe Judge in opposition to a
motion to quash the subpoenas details the evidence relied upon by Defendants in
initiating the John Doe proceeding. Sep. App. 79-82.
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petitioning to open the John Doe investigation and seeking the issuance of
subpoenas and search warrants, all of which WCFG alleged were done in
violation of its First Amendment rights. Whether Defendants ultimately
would have been able to muster sufficient evidence to support criminal
charges against WCFG is not the relevant standard for purposes of
determining whether Defendants were entitled to qualified immunity and
whether the court should have entered a preliminary injunction. The issue
for purposes of Defendants potential liability under 42 U.S.C. 1983 is
whether by investigating WCFGs conduct Defendants violated clearly
established constitutional rights. See MTD Brief at 33-43.
Under state law, as construed by the GAB acting within the scope of
its authority, there is no clearly established right to engage in coordinated
issue advocacy free of regulation under the campaign finance law.
Defendants conduct in opening the John Doe investigation was not merely
not violative of clearly established law, it was consistent with prevailing
law as construed by the GAB, the agency responsible for its administration
and enforcement. Accordingly, even if this Court was to conclude that Op.
El Bd 00-2 as reaffirmed by the GAB is constitutionally infirm, that
conclusion does not strip Defendants of the cloak of qualified immunity.
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This Courts Recent Decision in Barland II Has No Impact

On Issues Related To Coordinated Expenditures.
More than a month after the District Court entered its Decision and
Order denying Defendants motions to dismiss (R. 83), and approximately
one week after the District Court entered its Decision and Order granting a
preliminary injunction (R. 181), this court issued its decision in Wisconsin
Right To Life, Inc. v. Barland (Barland II), 751 F.3d 804 (7th Cir.
2014).10 Barland II addressed a variety of issues under Wisconsins
campaign finance law, but the resolution of those issues has no bearing on
those presented here, because the Barland II issues involved independent
and not coordinated expenditures that become contributions.
In describing the plaintiffs in Barland II, a social welfare
organization under IRS Code 501(c)(4) and its related political action
committee (collectively, WRTL), this Court stated that:
Neither the organization nor its state PAC
contributes to candidates or other political
committees, nor are they connected with candidates,
their campaign committees, or political parties. That
is to say, they operate independently of candidates
and their campaign committees.
Barland II, 751 F.3d at 809. Because the issues in Barland II involved an
10
Because Barland II was decided after the District Court entered the orders at issue, it
could not have factored into the District Courts reasoning.
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assumed predicate that any expenditures were independent of candidates

and their committees, Barland II simply does not address the issue in this
case, whether WCFGs expenditures for issue advocacy can be treated as
contributions to a candidate if those expenditures were coordinated with the
candidate or, more specifically, whether the coordination between FOSW
and WCFG was so pervasive that WCFG is treated as a subcommittee of
FOSW.
Nor does the narrow construction given to the definitions of
political purposes in Wis. Stat. 11.01(16) and political committee in
GAB 1.28(1)(a), that is, as limited to express advocacy or its functional
equivalent, have any bearing here. The limiting construction applies only to
independent political speakers other than candidates, their committees, and
political parties . Barland II, 751 F.3d at 834. The limiting construction
does not apply to regulation of contributions or conduct of candidates or
their personal campaign committees. In Wis. Right to Life State Political
Action Comm. v. Barland (Barland I), 664 F.3d 139, 152 (7th Cir. 2011),
this Court emphasized that ever since Buckley ... the Supreme Court has
drawn a distinction between restrictions on expenditures for political
speech and restrictions on contributions to candidates. (Emphasis in
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original.) The Barland I Court specifically stated: The First Amendment

permits the government to regulate coordinated expenditures. Id. at 155.
The Barland II Court also notes that the Supreme Courts recent decision in
McCutcheon v. Fed. Election Commn, ___ U.S. ___, 134 S. Ct. 1434, 1464,
188 L. Ed. 2d 468 (2014) does not disturb the Buckley distinction between
contributions and independent expenditures. 751 F.3d at 811-12.
Even after Barland II, expenditures for coordinated communications
are constitutionally treated as in kind contributions under Wisconsin law.
This triggers reporting obligations applicable to the candidates and
registration and reporting requirements as to WCFG. In addition, since the
limiting construction of Wisconsin statutes by Barland II does not apply to
the conduct of a candidate or a candidates personal campaign committee, if
(under the second theory underlying the investigation) the communications
of WCFG amounted to acts with the cooperation of or upon consultation
with a candidate or agent or authorized committee of a candidate, or [done]
in concert with or at the request or suggestion of a candidate or agent or
authorized committee of a candidate, within Wis. Stat. 11.10(4), then
WCFG is deemed a subcommittee of the candidates personal campaign
committee, triggering reporting requirements of the candidates personal
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campaign committee for all contributions and disbursements received or

made by WCFG under Wisconsin law. Additionally, as a subcommittee of
the candidates personal campaign committee, WCFG also is subject to
contribution limits and source prohibitions under Wisconsin law.
Simply put, if WCFG engaged in coordinated issue advocacy with a
candidate, it is not an independent group under Barland II. Under such
circumstances, it is treated as having made regulated contributions to a
candidate with whom it coordinated, or it is treated as a candidates subcommittee. Accordingly, neither the courts holdings of Barland II, nor its
analytic framework, have any bearing on WCFGs conduct which was
under investigation.
II.
COORDINATED ISSUE ADVOCACY IS NOT PROTECTED

BY THE FIRST AMENDMENT.
The distinction between independent expenditures and coordinated
expenditures for purposes of the First Amendment dates back to Buckley,

decided in 1976. This distinction has been at the heart of Wisconsins
campaign finance law, as administered by the SEB and later by the GAB,
since Buckley established the distinction between independent expenditures
and coordinated expenditures.
Although post-Buckley decisions have eroded other margins of
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campaign finance laws on First Amendment grounds, that erosion has not
changed the landscape relative to the issue presented in this case. No court,
certainly not the United States Supreme Court, has taken the constitutional
leap urged by WCFG here, a departure from existing law which obliterates
Buckleys distinction between independent and coordinated expenditures.
A.
The Supreme Court Continues to Recognize That

Coordinated Expenditures Can Be Treated As
Contributions to a Candidate.
Notwithstanding WCFGs claim of a constitutional right to engage

in coordinated issue advocacy, no authority explicitly recognizes such a
right. This is not surprising. As Bradley Smith, a former Commissioner and
Chair of the Federal Elections Commission (FEC), recently noted:
In fact, more than 35 years after Buckley was
decided, there has still been remarkably little
analysis of the theory of coordination and
independent
expenditures,
by
courts
or
commentators. Buckleys attention to the issue is
limited to noting, in passing, that controlled or
coordinated
expenditures
are
treated
as
contributions, rather than expenditures under the
Act.
B.A. Smith,11 Super Pacs and the Role of Coordination in Campaign

Finance Law (herein, Smith), 49 Willamette L. Rev. 603, 606 (2013),
11
Smith served as a Commissioner, and later the Chair, of the FEC from 2000 to 2005.
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quoting Buckley, 424 U.S. at 46. Supreme Court case law bears out this
observation. Since Buckley, the Court has continued, with almost clocklike
regularity, to cite with approval and thus essentially reaffirm Buckleys
distinction between independent and coordinated expenditures.
In Fed. Election Commn v. Natl Conservative Political Action
Comm., 470 U.S. 480, 498, 105 S. Ct. 1459, 84 L. Ed. 2d 455 (1985),
although invalidating sec. 9012(f) of FECA, which limited expenditures by
independent committees, the Court quoted Buckleys language stating that
the absence of prearrangement and coordination undermines the value of
the expenditure to the candidate, and thereby alleviates the danger that
expenditures will be given as a quid pro quo for improper commitments
from the candidate. Five years later, in Austin v. Michigan Chamber of
Commerce, 494 U.S. 652, 702, 110 S. Ct. 1391, 1420, 108 L. Ed. 2d 652
(1990) overruled on other grounds by Citizens United v. Fed. Election
Commn, 558 U.S. 310, 130 S. Ct. 876, 175 L. Ed. 2d 753 (2010), the Court
again cited with approval Buckleys language stating that the absence of
prearrangement and coordination alleviates the danger that expenditures
will be given as a quid pro quo for improper commitments from the
candidate. Five years later, in McIntyre v. Ohio Elections Commn, 514
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U.S. 334, 353 n. 14, 115 S. Ct. 1511, 131 L. Ed. 2d 426 (1995), the Court
did so again.
In 1996, the Court rejected the FECs assertion that all party
expenditures should be ipso facto treated as coordinated, but the Court did
not question that party expenditures could be regulated if coordinated.
Colorado Republican Fed. Campaign Comm. v. Fed. Election Commn
(Colorado Republican I), 518 U.S. 604, 116 S. Ct. 2309, 135 L. Ed. 2d
795 (1996).12 Five years later, in Fed. Election Commn v. Colorado
Republican Fed. Campaign Comm. (Colorado Republican II), 533 U.S.
431, 121 S. Ct. 2351, 150 L. Ed. 2d 461 (2001), the Court declined to
constitutionalize the opposite proposition, rejecting the Partys assertion
that it should be ipso facto free to coordinate expenditures with candidates.
In doing so, the Court stated that a party is in the same position as some
individuals and PACs, as to whom coordinated spending limits have
already been held valid. 533 U.S. at 455, citing Buckley, 424 U.S. at 46
47 (emphasis added). Two years later, in rejecting a constitutional
12
Discussing that decision four years later, the Court referred to the constitutionally
significant fact that there was no coordination between the candidate and the source
of the expenditure, stating that Colorado Republican thus goes hand in hand with
Buckley, not toe to toe. Nixon v. Shrink Missouri Govt PAC, 528 U.S. 377, 392-93,
120 S. Ct. 897, 907, 145 L. Ed. 2d 886 (2000), quoting Colorado Republican I, 518
U.S. at 617-18.
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challenge to section 202 of Bipartisan Campaign Reform Act of 2002

(BCRA), the Court stated there is no reason why Congress may not treat
coordinated disbursements for electioneering communications in the same
way it treats all other coordinated expenditures. McConnell v. FEC, 540
U.S. 93 (2003) overruled on other grounds by Citizens United, 558 U.S.
310. The Court did not suggest that the First Amendment limited regulation
to a subset of communications constituting express advocacy.
Subsequent to McConnell, federal courts considered the validity of
proposed FEC rules defining circumstances under which expenditures for
coordinated communications could be treated as contributions under
BCRA. Describing the proposed rules as lax, the United States Court of
Appeals for the District of Columbia held that because the express
advocacy standard adopted by the FEC did not adequately separate
election-related advocacy from other activity falling outside FECAs
expenditure definition, the proposed regulation runs counter to BCRAs
purpose and therefore failed. Shays v. Fed. Election Commn (Shays III),
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528 F.3d 914, 925-26 (D.C.Cir. 2008).13 Although not a Supreme Court
decision, Shays III does not signal a constitutionally-mandated retreat
limiting the right to regulate communications coordinated with a candidate
to the subset of express advocacy; it signals the opposite.
In subsequently overruling Austin and McConnell and determining
that the ban on independent corporate expenditures for electioneering
communications under sec. 203 of BCRA violated the First Amendment,
the Court again quoted with approval the language of Buckley recognizing
the distinction of constitutional import between independent and
coordinated expenditures. See Citizens United, 558 U.S. at 357-58 (The
absence of prearrangement and coordination of an expenditure with the
candidate or his agent not only undermines the value of the expenditure to
13
The rules at issue in Shays III provided a safe harbor whereby candidates were free to
coordinate with outside groups so long as ads funded by those groups did not include
the magic words which clearly constitute express advocacy or did not recycle
campaign materials if those ads aired outside a 90 day window prior to a federal
election. Earlier draft rules previously struck down had a 120 day window. The Shays
III court noted that:
Under the present rules, any lawyer worth her salt, if asked by an
organization how to influence a federal candidates election, would
undoubtedly point to the possibility of coordinating pre-window
expenditures. The FECs claim that no one will take advantage of the
enormous loophole it has created ignores both history and human nature.
528 F.3d at 928.
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the candidate, but also alleviates the danger that expenditures will be given
as a quid pro quo for improper commitments from the candidate.) (quoting
Buckley, 424 U.S. at 47).
In 34 years of Supreme Court jurisprudence, from Buckley through
Citizens United, the Court has adhered to Buckleys distinction regarding
the scope of First Amendment protection afforded to independent as
opposed to coordinated expenditures. The Court has done so even as other
facets of campaign finance law have fallen under First Amendment
challenges. The continued vitality of the Buckley distinction has been
recognized by this Court subsequent to Citizens United. See Ctr. for
Individual Freedom v. Madigan (CIF), 697 F.3d 464, 495-96 (7th Cir.
2012) (rejecting argument that definition of coordination under Illinois law
was unconstitutionally vague, noting that it was no less clear than the
federal definition, which has long passed muster in the Supreme Court);
Barland I, 664 F.3d at 152-54 (emphasizing continued validity of Buckleys
distinction between restrictions on expenditures for political speech and
restrictions on contributions to candidates).
B.
The McCutcheon Decision Has No Bearing On The Law

As It Impacts Coordinated Expenditures.
Despite the Supreme Courts continued adherence to Buckleys
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distinction between independent and coordinated expenditures, the District

Court stated, Buckleys distinction between contributions and expenditures
appears tenuous. R. 181:25, citing McCutcheon, 134 S. Ct. at 1464
(Thomas, J., concurring). Although the District Court relied heavily on
McCutcheon,14 its holding has no bearing on Buckleys distinction between
independent and coordinated expenditures. The issue in McCutcheon
involved the constitutionality of aggregate contribution limits aggregate
meaning the total sum of contributions an individual could lawfully make
to candidates (plural) as opposed to a candidate (singular). The
McCutcheon Court specifically stated that this case does not involve any
challenge to the base limits, which we have previously upheld as serving
the permissible objective of combatting corruption. 134 S. Ct. at 1442.
Notably, in reaching its decision on the aggregate limits issue, the
McCutcheon Court stated that:
The parties and amici curiae spend significant
energy debating whether the line that Buckley drew
between contributions and expenditures should
14
That the District Court relied on a case articulating new law decided after the
commencement of this action is inconsistent with the law having been clearly
established. See Defendants MTD Brief at 40, citing Anderson v. Creighton, 483
U.S. 635, 641 (1987) (Qualified immunity must be analyzed in light of clearly
established law, that is, the law at the time the constitutional violation is alleged to
have occurred.)
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remain the law. Notwithstanding the robust debate,

we see no need in this case to revisit Buckleys
distinction between contributions and expenditures
and the corollary distinction in the applicable
standards of review. Buckley held that the
Governments interest in preventing quid pro quo
corruption or its appearance was sufficiently
important, id., at 2627, 96 S.Ct. 612; we have
elsewhere stated that the same interest may properly
be labeled compelling, see National Conservative
Political Action Comm., 470 U.S., at 496497, 105
S.Ct. 1459, so that the interest would satisfy even
strict scrutiny.
Id. at 1445-46 (emphasis added). Accordingly, McCutcheon does not signal

a constitutional retreat from the Buckley distinction, one recognized and
applied by courts and regulatory agencies for nearly 40 years.
McCutcheon contains no verbiage suggesting an implied, much less
an explicit, disavowal of the Buckley concept that coordinated expenditures
are treated as contributions. Instead, the McCutcheon Court quoted with
approval Buckleys key verbiage supporting the distinction. 134 S. Ct. at
1454, quoting Citizens United, 558 U.S. at 357, in turn quoting Buckley,
424 U.S. at 47 ([t]he absence of prearrangement and coordination of an
expenditure with the candidate or his agent ... undermines the value of the
expenditure to the candidate.). Thus, McCutcheon can only be read as a
continued reaffirmation of Buckleys constitutional distinction between
independent and coordinated expenditures.
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Sound Reasons Exist for the Continued Distinction

Between Independent and Coordinated Expenditures.
Despite the District Courts concerns as to the impact of regulations

affecting coordinated communications, sound reasons exist for the rule.
Former FEC Chair and Commissioner Smith made the case succinctly:
Some type of anti-coordination rule is
generally presumed to be necessary for any system
of campaign finance regulation that relies on
limitations and prohibitions on spending and
contributing funds, and that hopes to remain
effective. The typical approach is to treat
coordinated spending as a contribution to the
candidates campaign, subject to both the limits on
campaign giving and, if applicable, campaign
spending. Absent such a rule, limitations on
financial contributions to candidate campaigns, or
on spending by those campaigns, are circumvented
with relative ease through the simple expedient of
the candidate (or his campaign manager or other
agent) directing a would-be donor on precisely how
to spend money to benefit the campaign. Limits on
coordinated activity are, therefore, a means of
preventing circumvention of the core limits on
contributions to candidates and candidate spending.
Smith at 607-08 (emphasis added). In rejecting a challenge to the Illinois

campaign finance laws disclosure requirements, alleging the law was
vague and overbroad because it regulated as political committees groups
that do not have as their major purpose the election of a candidate, this
Court observed that limiting disclosure requirements to groups with the
major purpose of influencing elections would allow even those very groups
29
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to circumvent the law with ease. CIF, 697 F.3d at 489. The CIF Court
added that the Supreme Court has frequently warned of the hard lesson of
circumvention in campaign finance regulation. Id., quoting McConnell,
540 U.S. at 165. Accordingly, disclosure provisions which attempted to
reduce this risk of circumvention by defining political committee to
include groups that either coordinate expenditures with campaigns and
parties or that run ads that are unambiguous appeals to vote a particular
way were consistent with the Buckley distinction between independent and
coordinated expenditures and were not constitutionally overbroad. Id., 697
F.3d at 489-90.
In focusing on what it described as defendants efforts to regulate
the plaintiffs issue advocacy speech, the District Court disregarded the
potential subterfuge of using coordinated communications to circumvent
constitutionally valid requirements as to contribution limits and disclosures.
To the extent the District Court had legitimate concerns about the potential
for a chilling effect on speech, the First Amendment does not mandate
green lighting all coordinated communications other than the subset of
communications constituting express advocacy. See Christian Coalition, 52
F. Supp. 2d at 88 (importing the express advocacy standard into [the]
30
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contribution prohibition [of 441(b) of FECA] would misread Buckley and

collapse
the
distinction
between
contributions
and
independent
expenditures in such a way as to give short shrift to the governments

compelling interest in preventing real and perceived corruption that can
flow from large campaign contributions).
Speech coordinated with a candidate is reasonably construed as a
thing of value to and authorized by the candidate, amounting to an inkind contribution under Wis.Adm.Code GAB 1.20(1)(e), whether or not
it constitutes express advocacy. The reasonable and constitutional answer to
the District Courts concerns is a fact specific standard, such as the GABs
Christian Coalition standard. Applying this standard, factors such as the
content, timing, and mode of communication, the intended audience and the
volume of the communications are material to determining whether the
communications were made in such a way that the candidate and the
spender emerge as partners or joint venturers in the expressive expenditure
. Sep. App. at 129. To be brought into the regulatory net under this
standard requires far more than merely brushing a candidates sleeve, or
31
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discussing shared philosophies or beliefs with a candidate at a fundraiser.15

Defendants opened a John Doe investigation after showing a neutral
magistrate, the John Doe Judge, prima facie evidence of expenditures
coordinated with a candidate. Erroneously concluding that the expenditures
under investigation could not be subject to regulation under state or federal
law unless the expenditures involved express advocacy, the District Court
prematurely shut down the investigation. The District Court should not
have shut down a valid investigation before Defendants could determine if
the evidence could support criminal charges under the applicable Christian
Coalition standard; the District Court should have dismissed this lawsuit.
CONCLUSION
The GAB respectfully recommends that the court reverse the District
Courts Orders denying Defendants motions to dismiss and granting
WCFGs motion for a preliminary injunction.
15
The District Court suggested that a charitable fundraiser coordinated with the Boy
Scouts could result in the Scouts becoming a campaign subcommittee subject to the
requirements and limitations of Wisconsin campaign-finance laws, exposing them to
civil and criminal penalties. R. 181:20 n.8.
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CERTIFICATE OF COMPLIANCE
1.
This brief complies with the type-volume limitation of Fed.
R. App. P. 29(d) and Fed. R. App. P. 32(a)(7)(B) for a brief by an amicus
curiae because this brief contains 6,720 words, excluding the parts of the
brief exempted by Fed. R. Ap. P. 32(a)(7)(B)(iii).
2.
This brief complies with the typeface requirements of Fed. R.
App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6)
because this brief has been prepared in a proportionally spaced typeface
using Microsoft Word 2013 in 13 point Times New Roman font, with
footnotes in 11 point Times New Roman font.
Dated August 8, 2014.
LEE, KILKELLY, PAULSON &
YOUNGER, S.C.
By: /s/ Paul W. Schwarzenbart

Thomas H. Brush
One West Main Street, Suite 700
(608) 256-9046
tbrush@leekilkelly.com
pschwarz@leekilkelly.com
Attorneys for Amicus Curiae
Wisconsin Government Accountability
Board
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CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing was
served on August 8, 2014, upon the following counsel of record in this
appeal by the U.S. Appeals Courts ECF system:
David B. Rivkin
Baker & Hostetler, LLP
1050 Connecticut Ave. N.W.
Ste. 1100
Washington, DC 20006-0000
Theodore J. Boutrous, Jr.

Sarah Staveley Matthews
Gibson, Dunn & Crutcher
333 S. Grand Ave.
Los Angeles, CA 90071-3197
Douglas Knott
Wilson, Elser, Mostowitz, Edelman
& Dicker, LLP
740 N. Plankinton Ave., Ste. 600
Milwaukee, WI 53203
Thomas Henderson Dupree, Jr.

Gibson, Dunn & Crutcher, LLP
1050 Connecticut Ave. N.W.
Samuel J. Leib
Leib & Katt
740 N. Plankinton Ave., Ste. 600
Milwaukee, WI 53203
Michelle Shamblin Stratton

Bakers Botts, LLP
One Shell Plaza
910 Louisiana St.
Houston, TX 77002-4995
Joseph M. Russell
Patrick C. Greeley
Von Briesen & Roper, S.C.
411 E. Wisconsin Avenue, Suite 1000
Milwaukee, WI 53202-3262
KatieLynn Boyd Townsend

Gibson, Dunn & Crutcher, LLP
2029 Century Park East
Ste. 4000
Los Angeles, CA 90067
34
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Timothy M. Barber
Axley Brynelson
2 E. Mifflin St., Ste. 200
Madison, WI 53703
David C. Rice
Office of the Attorney General
Wisconsin Department of Justice
17 W. Main St.
P.O. Box 7857
Michael J. Bresnick
Stein, Mitchell & Mezines
1100 Connecticut Ave. N.W., Ste.
110
Dean Arthur Strang

Strang Bradley, LLC
Ten E. Doty St., Ste. 620
Madison, WI 53703
/s/ Paul W. Schwarzenbart

35
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EXHIBIT D
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STATE OF WISCONSIN
COURT OF APPEALS
DISTRICT I / DISTRICT IV
CaseNo.2014AP W
STATE of WISCONSIN ex rel. FRANCIS D. SCHMITZ,

Special Prosecutor,
Petitioner,
vs.
THE HONORABLE GREGORY A. PETERSON,

John Doe Judge, UNNAMED MOVANT NO. 1, UNNAMED MOVANT
NO, 2, "UNNAMED MOVANT NO. 3, -UNNAMED MOVANT NO. 4,
UNNAMED MOVANT NO. 5, UNNAMED MOVANT NO. 6,

UNNAMED MOVANT NO. 7, and UNNAMED MOVANT NO. 8,
Respondents.
AFFIDAVIT OF KEVIN J. KENNEDY
DIRECTOR AND GENERAL COUNSEL

Concerning John Doe Proceedings in Five Counties
Hon, Gregory A. Peterson^ Presiding
Columbia County No. 13JD000011; Dane County No. 13JD000009;

Dodge County No. 13JD000006; Iowa County No. 13JD000001;
Milwaukee County No. 12JD000023
Francis D. Schmitz
Special Prosecutor
Petitioner
P.O. Address
Post Office Box 2143

Milwaukee, WI 53201
(414) 278-465
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STATE OF WISCONSIN
COURT OF APPEALS
DISTRICT I/IV
CaseNo.2014AP W
STATE of WISCONSIN ex reL FRANCIS D. SCHMITZ,

Special Prosecutor,
Petitioner,
vs.
THE HONORABLE GREGORY A. PETERSON,

John Doe Judge, and UNNAMED MOVANTS NO. 1 to NO. 8,
Respondents,
AFFroAVIT OF KEVIN J. KENNEDY

DIRECTOR AND GENERAL COUNSEL
STATE OF WISCONSIN )
DANE COUNTY )
) ss.
Kevin J. Kennedy, being first duly sworn on oath, deposes and says that:
1. I am the Director and General Counsel of the Wisconsin
Government Accountability Board (G.A.B.). I was appointed to this

position on November 5, 2007. The G.A.B. took over the responsibilities
of the former State Elections and State Ethics Boards on January 10,2008.
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2. Prior to my position with the G.A.B., I served for 24 years as the
Executive Director of the Wisconsin State Elections Board (SEB), the

predecessor to the G.A.B, with respect to election and election campaign
administration.
3. Prior to my position as Director of the SEB, I served as staff counsel
for the SEB for 4 years,

4. The G.A.B. is statutority charged with the responsibility for the
admimstration ofWis. Stats, chs. 5 to 12, other laws relating to elections
and election campaigns, as well as lobbying and ethics laws. See Wis. Stat.
5.05(1).
5. The G.A.B, officially began work on January 10, 2008. It was
created a year earlier by 2007 Wisconsin Act 1, replacing the State

Elections Board and the State Ethics Board. TheG.A.B. is made up of six
former judges, nominated by a panel of four Wisconsin Appeals Court

judges, appointed by the Governor and confirmed by the Senate. The six
board members serve staggered six-year terms; one member's term expires
each year. Both the Board and its staff must be non-partisan, Wis. Stats.
5.05(2m)(d)-(e), 15.60(4)-(8). In a 2010 commentary titled "The

Persistence of Partisan Election Administration," Ohio State University law
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professor Daniel P. Tokaji states; "The best American model is

Wisconsin's Government Accountability Board, which consists of retired
Judges selected in a way that is designed to promote impartiality," See

Exhibit 1, Election Law @ Mortiz^ September 28, 2010. Professor Tokaji
followed up in 2013 with a draft paper titled "America's Top Model: The
Wisconsin Government Accountability Board." See Exhibit 2, abstract
January 16, 2013, paper to be published in U.C. Irvine La-w Review,
"Symposium: Foxes, Henhouses, and Commissions: Assessing the
Nonpartisan Model in Election Administration, Redistrictmg, and

Campaign Finance" (2013, Forthcoming).
6. Pursuant to its statutory responsibilities, the mission of the G.A.B. is
to ensure accountability in government by enforcing ethics and lobbying

laws, and to enhance representative democracy by ensuring the integrity of
the electoral process. To carry out this mission, the Board and its staff
direct their energies toward providing for an informed electorate. The

G.A.B, is a source of information about the election process, and the
activities and finances of candidates for public office.

7. The G.A.B. is committed to ensuring that Wisconsin elections are
administered through open, fair and impartial procedures that guarantee that
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the vote of each individual counts, and that the will of the electorate
prevails. The G.A.B. uses information technology and the Internet to make
information readily available to the public about the financing of political

campaigns, elections, lobbying, and financial interests of public officials.
The Board and its staff are dedicated to enforcing the election, ethics,
lobbying and campaign finance laws vigorously to reduce the opportunity
for corruption and maintain public confidence in representative
government
8. The issuance of a supervisory or mandamus writ is controlled by
equitable principles and an appellate court can consider the rights of the
public and third parties. State ex rel. Dressler v. Circuit Court for Racine
County, Branch 1, 163 Wis.2d 622, 630, 472 N.W.2d 532 (Wis. Ct, App.
199 Inciting Cartwrightv. Sharps, 40 Wis.2d 494, 503, 162 N.W.2d 5
(Wis. 1968)).
9. In the instant matter, the GA.B, respectfully requests that this Court
consider the rights of the G.A.B., as a third party, and the rights of the
public in general. The Court should consider the impact of this matter on:
A) The G.A.B/s ability to provide accurate and consistent advisory
opinions to individuals, candidates, political committees, and other
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persons (See Wis. Stat. 5.05(6a)) and to enforce Wisconsin's

campaign finance laws (See Wis. Stat. 5.05(2m)), and
B) The ability for the public to satisfy their right to information

regarding the true source of a candidate's support or extent of that
support, such that our democratic system of government can be
maintained (See Wis. Stat. ll,001;*<?ee also, Citizens United v.
FEC, 558 U.S. 310, 130 S.Ct 876, 899, 916 (2010).)
10. The G.A.B. is responsible for providing advisory opinions regarding
the propriety of a person's actions under Wis. Stats, chs. 5 to 12, subch. Ill
ofch. 13, or subch. HI ofch. 19. See Wis. Stat. 5.05(6a). The G.A.B. is
also responsible for enforcement of Wisconsin's campaign finance laws
found in. Wis. Stats, ch. 11 and in Wis. Adm. Code GAB ch, I. Failure of
this Court to address the instant matter would impact the G,A.B. greatly
and consequently all parties involved in election campaigns, including in
the following ways;
A. The G.A.B., and previously the SEB, has routinely provided
advisory opinions consistent with the State's application of

Wisconsin law regarding coordination of expenditures and its
treatment as contributions. In fact, throughout the recall elections in
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2011 and 2012, the G.A.B. provided such advisory opinions

regarding coordination. The G.A.B. has also provided advisory
opinions to persons involved in the 2014 election campaigns. Those

that already received advisory opinions presumably conformed their
conduct to. the advice and would now be at a significant competitive
disadvantage to others who may not consider themselves subject to
the same rules. In addition, while the G.A.B. continues to render
advice consistent with its past application of the law, the instant
matter has called that advice into question, creating great difficulties
administermg the campaign finance law. Clarity is particularly
necessary, during this election year.
i. Pursuant to 2007 Wisconsin Act 1, the G.A.B. was required
to review and affirm (or reject) all prior SEB formal opinions,
2007 Wisconsin Act 1, Section 209 C2)(f), Attached as
Exhibits is formal opinion ELBd.Op, 00-2, originally
adopted by the former SEB in 2000. Pursuant to 2007
Wisconsin Act 1, this formal opinion was reviewed and
specifically affimied by the G.A.B . in a public meeting on

March 26, 2008. Pages 8-13 of the opinion include a detailed
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analysis of Wisconsin law regarding a candidate's

coordination with issue advocacy groups, and the opinion
concludes that such coordination constitutes conduct that is
subject to campaign finance regulation because the
coordination results in a political contribution.

ii. Pursuant to 2007 Wisconsin Act 1, the GA.B. was required
to review and affirm (or reject) all prior administrative rules

originally promulgated by the SEB. Pursuant to its
requirements under this Act, the G.A.B. reviewed and
specifically affm-ned Wis. Adm. Code GAB 1.42

(coordination) in a public meeting on March 26,2008, In
addition, the G.A.B. reviewed and specifically affirmed Wis,
Adm. Code GAB 1,20 (in-kind contributions) in a public
meeting on May 5, 2008.
iii. In 1978, the SEB promulgated the original Wis. Adm. Code
GAB 1.42, subsequent to the U.S. Supreme Court's Buckley
v. Valeo decision. The Legislature chose not to modify Wis.
Adm. Code GAB 1.42, when it made statutory revisions in

1979. In 1985,1 drafted a revised Wis. Adm, Code GAB
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1.42 to comport the rule more precisely with Wis. Stat.

11.06(7) and its use of the federal definition of conduct that
is known as coordination. Attached as Exhibit 4 is a copy of
the microfiche legislative drafting file for the 1979 revisions
to Wis.Stat 11.06(7).
B. The G,A.B. has also received complaints from both major political
parties, as well as others, and completed investigations of those
complaints, which involved alleged violations of Wisconsin law

regarding illegal coordination. In fact, throughout the recall
elections in 2011 and 2012, the G.A.B. investigated complaints
alleging illegal coordination. The G.A.B.'s ability to satisfy its
statitory responsibilities to enforce Wisconsin campaign finance law
has been compromised by the instant matter and clarity is necessary
during this election year.
11. In a decision with eight United Supreme Court Justices concurring,
the Court stated that the citizens' right to know is inherent in the nature of
the political process and transparency enables the electorate to make
informed decisions and give proper weight to different speakers and
messages. Citizens United v, FEC, 558 US. 310, 130 S.Ct, 876, 899 and
Case: 14-1822
Document: 134-2
Filed: 09/02/2014
Pages: 40
916 (2010.) In Citizens United, the Supreme Court clarified that disclosure
requirements are not limited to speech that is the functional equivalent of
express advocacy, reasoning that while disclaimer and disclosure
requirements may burden the ability to speak, they "impose no ceiling on
campaign-related activities" and "do not prevent anyone from speaking."
M at 914-915 (citing Buckley v. Valeo, 424 U.S. I, 64 (1976)and

McConnellv. FEC, 540 US, 93, (2003)).
12. The Wisconsin Legislature left no doubts about the purpose of
Wisconsin s campaign finance laws, when it codified its declaration of
policy almost 40 years ago in Wis. Stat 11.001 as follows:
(1) The legislature finds and declares that our democratic system of
government can be maintained only if the electorate is informed. It
* further finds that excessive spending on campaigns for public office
jeopardizes the integrity of elections. It is desirable to encourage the
broadest possible participation in financing campaigns by all citizens
of the state, and to enable candidates to have an equal opportunity to
present their programs to the voters. One of the most important
sources of information to the voters is available through the

campaign finance reporting system. Campaign reports provide
information which aids the public in fully understanding the public

positions taken by a candidate or political organization. When the
true source of support or extent of support is not fully disclosed, or
when a candidate becomes overly dependent upon large private

contributors, the democratic process is subjected to a potential
corrupting influence. The legislature therefore finds that the state has
a compelling interest in designing a system for fully disclosing
contributions and disbursements made on behalf of every candidate
for public office, and in placing reasonable limitations on such
Case: 14-1822
Document: 134-2
Filed: 09/02/2014
Pages: 40
activities. Such a system must make readily available to the voters

complete information as to who is supporting or opposing which
candidate or cause and to what extent, whether directly or indirectly.
This chapter is intended to serve the public purpose of stimulating
vigorous campaigns on a. fair and equal basis and to provide for a
better informed electorate.
(2) This chapter is also intended to ensure fair and impartial

elections by precluding officeholders from utilizing the perquisites
of office at public expense in order to gain an advantage over
nonincumbent candidates who have no perquisites available to them.
(3) This chapter is declared to be enacted pursuant to the power of

the state to protect the integrity of the elective process and to assure
the maintenance of free government.
13. The impact of the Instant matter on the public is profound. In

contradiction of the stated legislative purpose of Wisconsin's campaign
finance laws, affirming the John Doe judge's interpretation of Wisconsin
law regarding coordination would result in candidate's direct control over
millions of dollars of undisclosed corporate and individual contributions

without limitation on the amounts accepted. A candidate could operate
secret committees and direct them to run overwhelming and negative
advertising, while the candidate remains above the fi-ay and the public
would not know the true source of the contributions or expenditures. The
public would have no way of knowing who actually was supporting the
candidate and to what extent. This would undermine Wisconsin's system
10
Case: 14-1822
Document: 134-2
Filed: 09/02/2014
Pages: 40
of campaign finance regulation. The impact of this circumvention of

contribution limits raises the same significant concerns about actual
corruption or the appearance of corruption upon which the United States
Supreme Court upheld contribution limitations mSuckleyv. Valeo, 424

U.S. 1,25 (1976). Without campaign finance disclosure and disclaimers
identrfymg the actual sponsors of campaign advertisement, the public
would have no way of tracking whether a donation resulted in favorable
treatment by the elected candidate.
14. Wis. Stat 11.001 expresses a legislative policy which continues to

hold true; "Our democratic system of government can be maintained only
if the electorate is informed" and "excessive spending on campaigns for
public office jeopardizes the integrity of elections. The GA.B. s mission

comports with this legislative policy and enforcing both of these
11
Case: 14-1822
Document: 134-2
Filed: 09/02/2014
Pages: 40
fundamental principles is necessary to ensure Wisconsin has an informed

electorate and to preserve our democratic system of government.
Dated this 2/ây of February 2014.
Kêvin J, Kei
Government Accountability BoÎrd
Director and General Counsel
Subscribed and sworn to before
State Bar No. 1017591
me at Madison, Wisconsin on
this j^\^ day of February 201;
Notary Public, Dane County

State of Wisconsin
My commission is permanent.
12

CRG Advocates V Chisholm Et Al - Complaint With Exhibits

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CRG Advocates V Chisholm Et Al - Complaint With Exhibits

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IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF WISCONSIN

Civil Case No. 2:14-cv-1222

Case 2:14-cv-01222-RTR Filed 10/02/14 Page 1 of 19 Document 1

CRG is a social-welfare organization recognized as a non-profit entity under 26

Seven of the defendantsThomas Barland, Harold Froehlich, John Franke, Elsa

CRGs activities are funded through contributions by supporters of its advocacy.

CRG is not a committee as the term is defined in Wisconsin Statutes 11.01(4)

CRGs Intended Collaboration with Citizen-Candidates

to participate directly in Wisconsin politics to advance fiscal responsibility and government

Carl Pettis resides in Waukesha County, where he is a member of the Board of

Supervisors, an elected position. Pettis is up for reelection in 2014. A lifelong resident of

the Wisconsin Senate. An Information Technology consultant, Arnold became involved in

CRG has long advocated in favor of participatory democracy, encouraging

Collaboration with Simac, Pettis, and Arnold, as well as other fiscally

CRG may also undertake broadcast advertising, in collaboration with Simac,

CRG has registered the Internet domain name takechargewisconsin.org and

Wisconsins Campaign-Finance Framework

Chapter 11 of Wisconsin Statutes sets forth the states campaign-finance regime,

Chapter 11 deems certain activities involving independent committees and

All the key terms in these provisionscommittee, disbursement,

To avoid striking down the relevant provisions of Wisconsins campaign-finance

administrative regulations, a communication is express advocacy if it uses language such as

GAB Has Adopted and Enforced an Interpretation of Wisconsin Law

advocacy if it is made or incurred under the authorization, direction or control of or otherwise by

On June 20, 2013, GAB formally authorized a statewide campaign-finance

in its statewide investigation and serves as a special prosecutor nominated by Defendant

GABs Executive Director, Defendant Kennedy, has offered a sworn statement to

The Chilling Effect of GABs Coordinated-Issue-Advocacy Theory

In GABs view, coordination of issue advocacy with a political candidate may

First, in GABs view, under Wisconsin Statutes 11.10(4) an entity that

Making independent expenditures without the permission of the campaign

Using preexisting funds for any purpose, 11.05(6);

Accepting corporate contributions for independent expenditures, 11.38;

Accepting individual contributions for independent expenditures above the base

Contributing to other candidates committees where the candidates committee

Second, in GABs view, under Wisconsin Statutes 11.06(4) expenditures

GABs vigorous advancement of this theory indicates that it intends to continue to

CRG repeats and re-alleges the allegations of Paragraphs 138.

The Supreme Court has never recognized a compelling interest in regulating

GAB has interpreted Wisconsin Statutes 11.01(16) to reach issue advocacy

Moreover, GABs interpretation results in restriction and prohibition of activities

Accordingly, the restrictions of Wisconsin law, as interpreted by GAB, on issue

CRG repeats and re-alleges the allegations of Paragraphs 138.

not to be subject to vague government edicts.

Wisconsin Statutes 11.01(16), as interpreted by GAB and applied through

CRG repeats and re-alleges the allegations of Paragraphs 138.

The Supreme Court has never recognized a compelling interest in regulating

The restriction of Wisconsin law, as interpreted by GAB, on issue advocacy

CRG repeats and re-alleges the allegations of Paragraphs 1-55.

An actual controversy exists between Defendants and CRG regarding the

constitutionality of Wisconsins regulation of issue advocacy coordinated with a political

CRG repeats and re-alleges the allegations of Paragraphs 158.

CRG is suffering irreparable injury as a result of Defendants enforcement and

unconstitutional interpretation of Wisconsins campaign-finance statute.

Chapter 11 as applied to issue advocacy, whether or not coordinated with a

Case 2:14-cv-01222-RTR Filed 10/02/14 Page 1 of 104 Document 1-1

June 21, 2000

Elections Board Opinion 00-02

Case 2:14-cv-01222-RTR Filed 10/02/14 Page 2 of 104 Document 1-1

WISCONSIN RIGHT TO LIFE

Case 2:14-cv-01222-RTR Filed 10/02/14 Page 3 of 104 Document 1-1

Case 2:14-cv-01222-RTR Filed 10/02/14 Page 4 of 104 Document 1-1