The Worst Ruling Since Citizens United

By Daniel I. Weiner May 13, 2014

http://news.yahoo.com/worst-ruling-since-citizens-united-094500798--politics.html

Whatever one thinks about Wisconsin Governor Scott Walker and his policies, the decision last week by federal judge Rudolph T. Randa to summarily halt an investigation into alleged campaign finance violations by Walker’s campaign and supporters—and to order prosecutors to destroy all the evidence they collected—was a striking instance of judicial chutzpah. The accompanying opinion (PDF) is laced with ideological rhetoric seeking to undermine many of the remaining campaign finance laws on the books. Even following the Supreme Court’s evisceration of campaign finance law in the Citizens United and McCutcheon decisions, 

Randa’s ruling is a bridge too far. It should not stand.

2012’s Wisconsin recall election was a $137 million affair. Groups claiming to act independently of any candidate spent more than half of this total, roughly $70 million. Many of them drew their funding from out-of-state “dark money” organizations, which can raise unlimited funds and keep their contributors secret. Under state law, such spending could not be “coordinated” with Walker or another candidate. Whether some of this spending was in fact coordinated—steered at the candidate’s suggestion or with his cooperation—was the question at the heart of the Wisconsin investigation.

Coordination, once the obscure preserve of election lawyers, has become a hot topic. 

In Citizens United, a narrow majority of the Supreme Court took away from federal, state, and local authorities the ability to place limits on how much corporations, unions and other deep-pocketed interests can spend on elections, as long as they don’t coordinate with candidates—based on the fanciful theory that such “independent” spending cannot corrupt politicians. But the Citizens United majority did reaffirm that it’s perfectly constitutional for the government to limit non-independent spending.

Enter Judge Randa. According to him, only spending on ads containing an unmistakable call to vote for or against someone may be subject to restrictions on coordination. In other words, an advertisement a few weeks before the election saying “Defeat Senator Jones because he won’t stand with the troops,” cannot be coordinated with a candidate. But one saying “Tell Senator Jones to stop hurting the troops,” can be conceived, directed, and promoted by Senator Jones’s political opponent.

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