Citizens for Responsible Government Advocates Inc v. Barland et al

Filing 20

ORDER signed by Judge Rudolph T. Randa on 10/14/2014. Plaintiff's request for injunctive relief GRANTED. Defendants prohibited from implementing enforcing, or giving effect to definition of "political purposes" found in Wis. Stats. 11.01(16) against communications expenditures, except as applied to expenditures for communications that expressly advocate election or defeat of clearly identified candidate or are functional equivalent of express advocacy as defined in FEC v. Wisconsin Right to Life, Inc., 551 U.S. 449 ("WRTL"). Defendants prohibited from implementing, enforcing, or giving effect to restrictions on "coordination" in Wis. Stats. 11.10(4) and 11.06(4)(d) against communications expenditures, except as applied to expenditures for communications that expressly advocate election or defeat of clearly identified candidate or are functional equivalent of express advocacy as defined in WRTL. Defendants prohibited from implementing, enforcing, or giving effect to any other provisions of Wis. Stats. Chapter 11 triggered by 11.01(16), 11.10(4), or 11.06(4)(d) against communications expenditures, except as to expenditures for communications that expressly advocate election or defeat of a clearly identified candidate or are the functional equivalent of express advocacy as defined in WRTL. Defendants' response to CRG's motion for preliminary injunction due on or before 10/21/2014. #17 Defendants' MOTION for Extension of Time DENIED as moot. (cc: all counsel)(cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
CITIZENS FOR RESPONSIBLE
GOVERNMENT ADVOCATES, Inc.,
Plaintiff,
-vs-

Case No. 14-C-1222

THOMAS BARLAND, et al.,
Defendants.
DECISION AND ORDER
Citizens for Responsible Government Advocates, Inc. (“CRG”) is a
conservative advocacy group organized under 26 U.S.C. § 501(c)(4). CRG
engages in issue advocacy in favor of fiscal conservatism and private property
rights. In conjunction with the upcoming election, and also as a long-term
project to continue thereafter, CRG intends to launch a campaign called “Take
Charge Wisconsin.” Through the use of web and broadcast communications,
CRG will highlight both the stories of ordinary citizens who have served in
public office and the problem of government waste at the hands of career
politicians.
As part of this project, CRG identified three citizen candidates who are
advancing CRG's policy goals of fiscal responsibility through participatory
democracy: Kim Simac, Carl Pettis, and Jason Arnold. CRG is planning to

create materials describing their backgrounds, their efforts to become
politically involved, and their work to further fiscal responsibility in
government. In short, CRG hopes to engage in issue advocacy that is
coordinated with candidates currently running for election or re-election.
The defendants in this action, members of the Wisconsin Government
Accountability Board and Milwaukee County District Attorney John
Chisholm, have taken the position that coordinated issue advocacy is illegal
under Wisconsin's campaign finance law. Accordingly, in advance of officially
launching “Take Charge Wisconsin,” CRG brought this action and quickly
moved for a preliminary injunction.
On October 7, the Court granted CRG's motion for expedited briefing,
ordering the defendants to respond to CRG's motion for a preliminary
injunction by October 14. After the entry of this Order, the Court received a
letter from Brian Hagedorn, Chief Legal Counsel for Governor Scott Walker.
Mr. Hagedorn explained that J.B. Van Hollen, Attorney General for the State
of Wisconsin, refused to act as counsel for the defendants in this lawsuit. Van
Hollen's refusal was based, at least in part, upon the “tenuous” nature of the
defendants' legal theory regarding coordinated issue advocacy. See, ECF No.
15-3. Hagedorn further explained that the Governor's office was attempting to
secure private legal counsel, and that in light of the various logistical issues
associated therewith, the defendants would likely be unable to comply with an

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expedited briefing schedule. See, ECF No. 15-1. In a subsequent letter,
Hagedorn asked the Court to “reconsider the order setting an expedited
briefing schedule until such time as counsel is retained for the defendants.”
ECF No. 15-2. CRG rejoins that the Court should enter the requested
injunction and order the defendants to respond to CRG's motion for a
preliminary injunction within seven days of counsel's appearance. Private
counsel for the defendants made their appearance today.
In light of the important constitutional issues at stake, the Court
agrees that CRG’s proposal is the appropriate procedure to follow under such
unusual circumstances. The general election is only three weeks away. Any
further delay threatens to negate the effectiveness of CRG's requested relief.
Courts have the authority to issue temporary injunctive relief on an ex parte
basis pending a ruling on the merits of a motion for a preliminary injunction.
See S.E.C. v. Unifund Sal, 910 F.2d 1028, 1034 (2d Cir. 1990); S.E.C. v.
Comcoa, Ltd., 887 F. Supp. 1521, 1526 (S.D. Fla. 1995).1
As to the merits, this Court's view on state efforts to regulate issue
advocacy was expressed in O’Keefe v. Schmitz, Case No. 14-C-139. The opinion
there cited to McCutcheon v. F.E.C., 134 S. Ct. 1434 (2014), which held that
any regulation “must target . . . what we have called ‘quid pro quo’ corruption
The Court finds that there is good cause to keep what amounts to a temporary
restraining order in place pending the Court’s resolution of CRG’s motion for a
preliminary injunction. Fed. R. Civ. P. 65(b).
1

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or its appearance. That Latin phrase captures the notion of a direct exchange
of an official act for money.” Id. at 1441. This Court therefore concluded that a
“candidate’s coordination with and approval of issue advocacy speech, along
with the fact that the speech may benefit his or her campaign because the
position taken on the issues coincides with his or her own, does not rise to the
level of ‘favors for cash,’” or a “direct exchange of an official act for money.” --F. Supp. 2d ----, 2014 WL 1795139, at *9 (E.D. Wis. May 6, 2014).2 Days after
that ruling, the Seventh Circuit issued a decision regarding Wisconsin's
campaign finance law that supports the Court's analysis, explaining as
follows: “As applied to political speakers other than candidates, their
committees, and political parties, the statutory definition of ‘political
purposes’ in [Wis. Stat. §] 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 [v. Valeo, 424
U.S. 1 (1976)] and [F.E.C. v. Wis. Right to Life, Inc., 551 U.S. 449 (2007)].”
Wis. Right to Life, Inc. v. Barland, 751 F.3d 804, 834 (7th Cir. 2014) (“Barland
II”). Therefore, the Court concludes, at least for now, that CRG is likely to
succeed on the merits in this action. See ACLU v. Alvarez, 679 F.3d 583, 589

The Seventh Circuit vacated the injunction in O’Keefe, but did not reach the
merits of the Court’s constitutional analysis, except in relation to its discussion of
qualified immunity. O’Keefe v. Chisholm, --- F.3d ----, 2014 WL 5088077 (7th Cir. Sept.
24, 2014).
2

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(7th Cir. 2012) (explaining that in First Amendment cases, the “likelihood of
success on the merits will often be the determining factor” because the “loss of
First Amendment freedoms, for even minimal periods of time, unquestionably
constitutes irreparable injury”).
NOW, THEREFORE, BASED ON THE FOREGOING, IT IS
HEREBY ORDERED THAT CRG’s request for injunctive relief is
GRANTED. Defendants are prohibited from implementing, enforcing, or
giving effect to the definition of “political purposes” found in Wisconsin
Statutes § 11.01(16) against communications expenditures, except as applied
to expenditures for communications that expressly advocate the election or
defeat of a clearly identified candidate or are the functional equivalent of
express advocacy as defined in FEC v. Wisconsin Right to Life, Inc., 551 U.S.
449 (2007) (“WRTL”). Defendants are prohibited from implementing,
enforcing, or giving effect to the restrictions on “coordination” in Wisconsin
Statutes § 11.10(4) and § 11.06(4)(d) against communications expenditures,
except as applied to expenditures for communications that expressly advocate
the election or defeat of a clearly identified candidate or are the functional
equivalent of express advocacy as defined in WRTL. Defendants are
prohibited from implementing, enforcing, or giving effect to any other
provisions of Wisconsin Statutes Chapter 11 that are triggered by Sections
11.01(16), 11.10(4), or 11.06(4)(d) against communications expenditures,

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except as to expenditures for communications that expressly advocate the
election or defeat of a clearly identified candidate or are the functional
equivalent of express advocacy as defined in WRTL.
IT IS FURTHER ORDERED THAT the defendants’ response to
CRG’s motion for a preliminary injunction is due on or before October 21,
2014. The defendants’ motion for an extension of time [ECF No. 17] is
DENIED as moot.
Dated at Milwaukee, Wisconsin, this 14th day of October, 2014.

BY THE COURT:
__________________________
HON. RUDOLPH T. RANDA
U.S. District Judge

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