FEC Commissioner: Wisconsin Judge Went Way Beyond Citizens United And McCutcheon

Wisconsin Gov. Scott Walker answers questions from reporters on April 16, 2014, in Madison, Wis. Liberal rocker John Mellencamp wants conservative Republican Gov. Walker to know he supports union rights and says Walk... Wisconsin Gov. Scott Walker answers questions from reporters on April 16, 2014, in Madison, Wis. Liberal rocker John Mellencamp wants conservative Republican Gov. Walker to know he supports union rights and says Walker should think about that before using his songs on the campaign trail. (AP Photo/Scott Bauer) MORE LESS
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There are two things to know about the federal court decision this week that put a halt to an investigation into Wisconsin Gov. Scott Walker’s (R) 2012 recall election.

The first thing to know is that the ruling threw a huge roadblock in front of Wisconsin state prosecutors, who were looking at alleged coordination between Walker’s campaign and outside conservative groups. The second thing to know is that the ruling, written by U.S. District Judge Rudolph Randa, contained far-reaching opinions about campaign finance laws, and what outside spending groups are and aren’t allowed to do. (Randa was appointed to the bench in 1992 by President George H.W. Bush.)

TPM spoke Thursday with Ann Ravel, a commissioner of the Federal Election Commission, to get her thoughts on Randa’s ruling. Ravel, who was nominated to the FEC last year by President Obama, stressed that the ruling was just the first step in the legal process. (The state prosecutors have already appealed Randa’s decision.)

Still, Ravel said she found the language of Randa’s decision “very broad” and “troubling,” and she thought that the decision itself goes “far beyond” what the Supreme Court has ruled in its 2010 Citizens United v. FEC decision and the more recent McCutcheon v. FEC. Those cases did away with various limits on political donations and spending, and the Citizens United case in particular has been seen as the decision that ushered in the super PAC and “dark money” era.

Below is a transcript of TPM’s interview with Ravel, which has been edited for length and clarity.

TPM: Can you tell me your reaction to the ruling itself?

Ann Ravel: Right. Clearly, because it’s a preliminary ruling it doesn’t have as much significance, because it hasn’t gone through the courts. But it is significant nonetheless, because it goes so far beyond what the Supreme Court has ruled in Citizens United and McCutcheon. And the language in the decision is very broad and troubling.

How do you read what Judge Randa is saying about campaign finance laws?

I think essentially what he’s saying isn’t the law. He has cut and pasted a lot of decisions, a lot of language from various decisions, in a way that is actually not applicable. And if it were to be carried out to its full meaning, there would be very few campaign [finance] laws that would continue to be able to be enforced.

Can you talk about the difference between express advocacy and issue advocacy, and how do you think Judge Randa handled that distinction? [Editor’s note: Express advocacy is, broadly, political speech that advocates for the election or defeat of a particular candidate. Issue advocacy, broadly, doesn’t mention candidates. But as Ravel explains, things are more complicated than that.]

He made it seem as if it is a very clear distinction. That express advocacy is solely vote for or vote against and everything else is issue advocacy. But that is not the law. The law is that there is express advocacy and then there is the appearance of express advocacy — what under the circumstances clearly identifies a candidate and relates to a campaign.

And in a case where there is coordination [between a campaign and an outside group], then even issue advocacy has the appearance of being express advocacy. And he doesn’t understand that.

You touched on this a little bit at the top, but how does this ruling square with where the Supreme Court has been in recent rulings, like McCutcheon and Citizens United?

You know, Citizens United clearly held that one of the protections in allowing independent expenditures is that there are rules against coordination and that there is disclosure of the donors. Those are protections that the Supreme Court clearly said were built in and therefore helped to prevent some of the issues that would otherwise be corrupting.

Judge Randa, when he selects out the language from those opinions, he doesn’t include that. Which was very significant for those decisions. And McCutcheon upheld Citizens United in terms of the protections and disclosure.

Judge Randa seems to think that coordination is basically OK for “issue advocacy”? Is that your read of what he’s saying? And, more broadly, do you agree with that position?

I think he appears to say that fairly clearly, and no I do not agree with that. Coordination is clearly not acceptable when there is issue advocacy, because coordination with the candidate or with the committees gives the implication that it is political. And even the judge, when he talks about the detriment to this particular committee, speaks about how this detriment occurred during the campaign. Which certainly adds to the implication that this speech was intended to be political.

I want to ask you about one quote in particular from Randa’s ruling: “The plaintiffs have found a way to circumvent campaign finance laws, and that circumvention should not and cannot be condemned or restricted. Instead, it should be recognized as promoting political speech, an activity that is ‘ingrained in our culture.'” I’m curious to get your reaction to that.

I think that language he was quoting from Citizens United, but I do not believe that it was intended in the way that this judge is intending it. Clearly, there can be laws, campaign finance laws, that are unconstitutional. The court has held them so. And if this were a situation where the courts had actually spoken to this issue, then the court would be right in saying that in regards to this issue.

But that does not appear to be the case here. This is not what was contemplated in any of the Supreme Court decisions, in fact it was the reverse. That campaign finance laws relating to coordination, relating to express advocacy and its definition, is still good law.

This post has been updated.

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