Sign In
  • Wisconsin Lawyer
    July 24, 2017

    John Doe II and Political Speech: A Constitutional Perspective

    Issue advocacy is broadly protected under Wisconsin law, but political candidates, organizations that advocate on their behalf, and lawyers for both still must pay heed to the differences between campaign-related speech that can and cannot be regulated.

    Eric M. McLeod & Joseph S. Diedrich

    red white and blue umbrellas

    Petition for writ of certiorari to the Supreme Court of Wisconsin denied.”1 So ended the four-year-long “John Doe II” investigation into campaign finance activities associated with Gov. Scott Walker’s recall election.

    The John Doe II investigation began in August 2012, two months removed from Walker’s recall victory. Seeking to uncover violations of Wisconsin’s campaign finance law,2 the investigation proceeded with subpoenaed document production and police searches of homes and offices. John Doe II captured both statewide and national attention, which had already been focused on the Walker administration following passage of 2011 Wis. Act 10, historical protests, and the recall itself.

    Political and legal battles raged for nearly half a decade. While politicians and pundits waged a rhetorical war in the press, constitutional challenges to John Doe II percolated in the Wisconsin courts. The latter culminated in the Wisconsin Supreme Court’s so-called John Doe II decision, which, as mentioned, the U.S. Supreme Court left intact.3

    Reflecting on John Doe II on its anniversary, this article sets forth a constitutional law analysis. It begins with a brief overview of the case, focusing particularly on the Wisconsin Supreme Court’s decision to terminate the investigation on the basis that it infringed on constitutional free speech protections.4 The article then zooms out and surveys some relevant First Amendment doctrines, including the distinction between express advocacy and issue advocacy, freedom of association, and anonymous speech. With that background, the article revisits John Doe II and concludes that although the decision likely was not constitutionally required, it still was well-grounded in First Amendment jurisprudence.

    The John Doe II Decision

    The John Doe II prosecutor alleged that Wisconsin’s campaign finance law had been violated in two ways:

    • First, that independent groups worked “hand in glove” with the Walker campaign committee, “such that the independent groups became mere subcommittees … thus triggering reporting and disclosure requirements,” which were not met; and

    • Second, that the independent groups coordinated with the Walker campaign to produce issue advocacy communications in a way that “amounted to an … in-kind contribution” that should have been reported but was not.5

    After laying out background First Amendment principles,6 the John Doe II court went on to interpret Wisconsin’s “labyrinthian and difficult to decipher” campaign finance law (specifically Wis. Stat. chapter 11, as it read at the time of the investigation).7 It noted that the regulated concerns at issue – committees, contributions, and disbursements – were all defined with reference to the statutory term “political purposes.”8

    Political purposes, in turn, meant acts “done for the purpose of influencing the election,” among other things.9 Relying heavily on the Seventh Circuit’s 2014 Barland II opinion, the John Doe II court declared that the definition of “political purposes” was unconstitutionally vague and overbroad, because beyond covering regulable speech, it also “[swept] in protected speech.”10

    Eric M. McLeodEric M. McLeod, U.W. 1993 cum laude, is a partner at Husch Blackwell LLP, Madison, specializing in free speech issues, campaign finance and election law, energy and natural resources law, and commercial and constitutional litigation.

    Joseph S. DiedrichJoseph S. Diedrich, U.W. 2017 summa cum laude, is also at Husch Blackwell LLP, Madison, focusing on commercial and constitutional litigation.

    Indeed, the definition allowed Wis. Stat. chapter 11 to regulate – and a John Doe prosecutor to investigate – not only express advocacy but also issue advocacy, a historically protected class of speech.11 (Express advocacy means “a communication that expressly advocates for the election or defeat of a clearly identified candidate.”12 Issue advocacy means “speech about public issues more generally.”13

    To remedy the vagueness and overbreadth, the court construed “political purposes” to include only “express advocacy and its functional equivalent,” thereby “plac[ing] issue advocacy … beyond the reach of [Wisconsin’s] regulatory scheme.”14 Because “political purposes” was the seed from which all of Wis. Stat. chapter 11’s regulation grew, the court’s construction also limited the statutory definitions of “committee,” “contribution,” and “disbursement.”

    Under this interpretation of “political purposes,” the prosecutor’s allegations evaporated. First, because committees were now subject to regulation only if they engaged in express advocacy, and because the prosecutor had not alleged that the independent groups engaged in express advocacy, those independent groups were not a “committee” subject to Wis. Stat. chapter 11’s regulation.15 Second, because the independent groups engaged only in issue advocacy, no regulable “contribution” took place, regardless of whether the advocacy was coordinated with the campaign.16 The court thus closed the John Doe II investigation: none of what the prosecutor alleged, even if true, was proscribed by Wis. Stat. chapter 11.17

    From this embrace of associational freedom as a constraint on campaign finance laws, it is no imprudent logical leap to conclude that political association commands the same status as political speech.

    Justice Abrahamson and Justice Crooks, each writing separately, dissented from the majority’s constitutional interpretation.18 Relying on U.S. Supreme Court and Wisconsin precedent, the dissenters reasoned that “political purposes” – specifically, the phrase “for the purpose of influencing the election” – was overbroad and vague only with respect to truly independent disbursements, not contributions or disbursements coordinated with a campaign.19

    For the dissenters, then, the express–issue distinction becomes necessary only when dealing with truly independent disbursements.20 Their analysis would thus require first determining whether the activity at issue is an independent disbursement or a coordinated disbursement (and hence, a contribution); if coordinated, it can be regulated (and investigated), regardless of whether it involves express or issue advocacy.21 For the majority, by contrast, the decisive question is whether activity involves express or issue advocacy; if issue advocacy, it cannot be regulated (or investigated), regardless of whether it is independent or coordinated.

    In sum, the majority ruled that Wis. Stat. chapter 11 can never constitutionally regulate issue advocacy. The dissenters would have ruled that issue advocacy can be regulated when it is coordinated with a campaign.22

    Political Speech

    The speech at issue in John Doe II was fundamentally political. Political speech resides at the “core” of the First Amendment,23 whose protection applies most “broad[ly],”24 “full[y],” and “urgent[ly]” “to the conduct of campaigns for political office.”25 Expansive political speech rights ensure “[the] unfettered interchange of ideas for the bringing about of political and social changes desired by the people.”26 To this end, the First Amendment requires courts “to err on the side of protecting political speech rather than suppressing it.”27

    Contributions and disbursements (or in federal parlance, “expenditures”)28 are treated not merely as conduct; rather, because they enable communication, they enjoy protection as speech.29 Campaign finance laws thus invite the ire of the First Amendment, as well as “the very notion of a free society.”30 For this reason, campaign finance laws – including disclaimer, disclosure, permitting, and reporting requirements, along with prohibitions and dollar caps – are subject to heightened constitutional scrutiny requiring a sufficient governmental interest and a narrow-enough application.31

    From this background, an ostensible tension emerges: on the one hand, political speech commands the fullest First Amendment protection, but on the other, it is subject to extensive regulation.32 Does the interest in ensuring a fair electoral process justify restrictions on free speech rights? If so, how much regulation is too much? Or put differently, how much contribution, disbursement, advocacy, or coordination is too much?33 One way courts have grappled with these questions is by using the express-issue distinction.

    Express versus Issue Advocacy

    The distinction between express advocacy and issue advocacy originated in Buckley v. Valeo, a U.S. Supreme Court case involving challenges to the Federal Election Campaign Act of 1971, as amended post-Watergate in 1974 (FECA).34 FECA, like Wis. Stat. chapter 11, regulated (and still regulates) political speech in various ways. Relevantly, FECA required “[e]very person … who makes contributions or expenditures” aggregating more than $100 in one year to disclose that activity to the Federal Election Commission.35 Contributions (which included coordinated activities) and expenditures both involved using money or other valuable assets “for the purpose of … influencing” an election.36 The plaintiffs in Buckley challenged that language as overbroad and vague.37

    The Buckley Court reasoned that contribution regulations do not restrict free speech so much as to trigger overbreadth and vagueness concerns.38 Regulations of independent expenditures,39 by contrast, greatly restrict speech, because (even as of 1976) “virtually every means of communicating ideas in today’s mass society requires the expenditure of money.”40 With that in mind, the Court declared that the phrase “for the purpose of … influencing” was vague and overbroad with respect to independent expenditures.41

    To fix this problem, the Court construed the term expenditure “to reach only funds used for communications that expressly advocate the election or defeat of a clearly identified candidate” – not those that advocate for issues.42 With that, the express–issue distinction was born.43 In a footnote, the Court explained that express advocacymeans “communications containing express words of advocacy of election or defeat, such as ‘vote for,’ ‘elect,’ ‘support,’ ‘cast your ballot for,’ ‘Smith for Congress,’ ‘vote against,’ ‘defeat,’ ‘reject.’”44 More recent U.S. Supreme Court opinions have drawn the line between issue advocacy, on the one hand, and express advocacy and its “functional equivalent,” on the other.45

    Following Buckley, Wisconsin imported the phrase “express advocacy” into Wis. Stat. chapter 11 as a statutory term itself (as opposed to a mere limiting construction).46 Interpreting that term in 1999, the Wisconsin Supreme Court stated that “Buckley stands for the proposition that it is unconstitutional to place reporting or disclosure requirements on communications which do not expressly advocate the election or defeat of a clearly identified candidate.”47

    A few months later, in a case involving “conduct substantially identical to the subject of [the John Doe II] investigation,”48 the Wisconsin Court of Appeals concluded that coordinated disbursements qualified as “contributions” under the then-existing version of Wis. Stat. chapter 11.49 Relying on Buckley, that court ruled that the express-issue distinction did not apply to contributions, and thus, coordinated disbursements for issue advocacy could be regulated without offending the First Amendment.50

    More recently, the Seventh Circuit in Barland II applied the express-issue distinction to Wis. Stat. chapter 11’s “for the purpose of influencing the election” language, thereby limiting “political purposes” to express advocacy.51 Barland II’s holding, however, applied only to independent disbursements, as coordination was not at issue in that case.52

    Freedom of Association

    In addition to protecting freedom of speech, the First Amendment also protects freedom of association. The seminal case on associational freedom is NAACP v. Alabama,53 in which Alabama sued the NAACP to enjoin its operations on the grounds that it had dodged the state’s corporate filing requirements.54 Upon the state’s request, the trial court ordered the NAACP to produce a list of all its members.55 The NAACP, effectively asserting its members’ rights, responded that the compelled disclosure would violate the First and Fourteenth Amendments.56

    The NAACP Court concentrated on what is often referred to as a “chilling effect.” The NAACP had put forth evidence that previous revelations of its members’ identities had subjected those members to “economic reprisal, loss of employment, threat of physical coercion, and other manifestations of public hostility.”57 Based on this showing, the Court determined that compelled disclosure would likely place a “substantial restraint upon the exercise by [the NAACP’s] members of their right to freedom of association.”58 Acknowledging the “vital relationship between freedom to associate and privacy in one’s associations,” the Court ultimately held that compelled disclosure of the member list was unconstitutional.59

    Nearly two decades later, concern for associational freedom permeated the Buckley Court’s analysis.60 For example, the Court noted that making a contribution “serves to affiliate a person with a candidate” and “enables like-minded persons to pool their resources in furtherance of common political goals.”61 This associational amplifying effect, the Court reasoned, is diluted by expenditure restrictions.62 Unless limited by the express–issue distinction, such restrictions offend freedom of association as much as freedom of speech. From this embrace of associational freedom as a constraint on campaign finance laws, it is no imprudent logical leap to conclude that political association commands the same status as political speech.63

    Anonymous Speech

    Closely related to freedom of association is the protection of anonymous speech, a form of expression that has played a vital role in political conversation throughout American history. To take but a few examples, the Federalist Papers were originally authored under pseudonyms, Henry Adams published his influential Democracy: An American Novel anonymously, and today, the internet facilitates anonymous speech writ large.64

    Particularly over the past six decades, the U.S. Supreme Court has shown a willingness to protect anonymous speech. In Talley v. California, the Court struck down a Los Angeles ordinance prohibiting the distribution of any handbill that did not identify the true names and addresses of its writers and sponsors.65 Two central themes pervaded the Court’s decision – anonymity’s historical significance and the threat of chilling effects.66 Drawing on NAACP v. Alabama, the Court bridged freedom of association and anonymous speech, uniting the two under the principle of avoiding chilling effects to ensure the broadest possible marketplace of ideas.67

    Subsequently, in McIntyre v. Ohio Elections Commission, the Court declared unconstitutional an Ohio statute requiring that election-related literature disclose its proponent.68 Unlike in Talley,the Ohio statute suffered from the additional problem that it specifically targeted political speech.69 Analogizing the secret ballot, the Court reiterated Talley’s concern that failure to protect anonymity would chill speech.70 At the end of the day, Ohio’s interests in preventing fraud and informing the electorate proved insufficient to save the statute.71

    Whether a right to anonymous speech exists – as opposed to something less – remains unclear. The language of Talley and McIntyre supports such a right. That said, the three Talley dissenters argued that the First Amendment does not even contemplate an anonymity right.72 And the Court has upheld federal regulations requiring independent groups to disclaim their identities in election-related broadcast advertisements, at least in the absence of demonstrated harm.73 In any event, though, the “decision to remain anonymous ... is anaspect of the freedom of speech protected by the First Amendment”74 that protects individuals from persecution, keeps the message central, prevents disenfranchisement, and advances other constitutional values.75

    John Doe II Revisited

    Before John Doe II, the U.S. Supreme Court and Wisconsin courts had not applied the express–issue distinction to contribution regulations, reasoning that contributions merit comparatively weak First Amendment protection and may thus be subjected to more extensive regulation. John Doe II, then, likely breaks new analytical ground by addressing vagueness and overbreadth and applying the express–issue distinction before deciding whether the activity at issue is a contribution or disbursement.76

    To that end, John Doe II may be fairly criticized. By altering the analytical approach, the John Doe II dissenters alleged, the majority gutted Wis. Stat. chapter 11.77 For example, Justice Abrahamson contended that the majority’s analysis misreads Buckley, “collapse[s] the distinction between contributions and independent expenditures,” and thereby undermines “the government’s compelling interest in preventing real and perceived corruption that can flow from large campaign contributions.”78

    Justice Crooks, too, took issue with the majority’s interpretation of Buckley and other case law; this, together with the majority’s failure to consider the appropriate statutory context, led to a decision in derogation of chapter 11’s underlying policy of ensuring a fully informed electorate.79

    Yet at the same time, when viewed in light of contemporary trends influencing First Amendment law, the John Doe II result appears unsurprising, analytically justifiable, and even constitutionally encouraged. The doctrines and cases catalogued above share a common denominator in the First Amendment’s overriding policy of avoiding chilling effects. The express–issue distinction – born in Buckley, imported into Wisconsin, and used as a sword in Barland II – exists to ensure that speech is not unconstitutionally restricted.80 It was the Buckley Court, expanding on earlier precedent, that recognized the intimate connections between speech and association, as well as the potential for campaign finance laws to chill both.81 History shows that speakers have sought to preempt chilling effects by choosing to remain anonymous, a practice that the U.S. Supreme Court has embraced historically and recently.82 From this collective jurisprudence, one can map a trajectory of expanding free speech protection, especially when political expression is at stake.83

    Of course, the John Doe II majority did not expressly invoke freedom of association or anonymous speech.84 It did not cite NAACP, Talley, or McIntyre. Although it is eminently plausible that these doctrines and cases were on every justice’s mind, one cannot be certain of that. And without any express reliance, the potential precedential breadth of John Doe II might be limited.

    John Doe II does, however, repeatedly echo the freedom-of-association and anonymous-speech cases in their handling of chilling-effect concerns.85 The majority’s analytical approach creates a bright-line rule delineating permissible and impermissible regulation of political speech: issue advocacy cannot be regulated, whether independent or coordinated.86 Absent this bright line, the majority implied, the risk of chilling free speech would be too high.87 With this approach, John Doe II builds on Buckley and further connects campaign finance law with broader First Amendment doctrines such as freedom of association and anonymous speech. John Doe II could, as a result, prompt further judicial discussion about these doctrines’ nature, scope, and relationship with political activity. So, too, could it provide precedential support for other jurisdictions seeking to trace more speech-protective constitutional lines.

    All in all, John Doe II’s conclusion and effect fall within the spirit and trajectory of First Amendment jurisprudence. The general trend is toward expanded political speech protection, and John Doe II follows suit. Although one might question the majority’s analytical decision to take up the vagueness and overbreadth question ex ante, that choice undoubtedly protects political speech more than the reverse; it gives the benefit of the doubt to speakers, not the government.

    By shining the spotlight on speech itself rather than on the relationship between speaker and candidate, and by following the constitutional mandate to “err on the side of protecting political speech rather than suppressing it,”88 John Doe II also helps resolve the tension between political speech receiving the utmost First Amendment protection and simultaneously being subject to extensive regulation. In sum, John Doe II ensures that political speech remains at the “core” of the First Amendment.89

    Finally, even if the majority’s analysis deviates from First Amendment precedent, it nevertheless finds independent support under the Wisconsin Constitution. Wisconsin courts must follow U.S. Supreme Court precedent when interpreting the First Amendment, but they may depart when dealing with Wisconsin’s constitutional analog,90 so long as that departure respects free speech rights at least as much as the First Amendment does.91 As shown above, John Doe II, if anything, enhances freedom of speech.


    The major consequence of John Doe II is that issue advocacy cannot be regulated in Wisconsin. In line with that proscription, the legislature also completely revised Wisconsin’s campaign finance law.92 Chapter 11 of the Wisconsin Statutes no longer revolves around – or even includes – a definition of “political purposes.” Instead, “express advocacy”93 takes on a more determinative role. And coordinated activity is regulated only if it is undertaken for express-advocacy purposes.94

    The issues discussed throughout this article are relevant to political candidates, advocacy organizations, and anyone spending money related to an election, as well as to the lawyers representing those parties. Although John Doe II and the revised Wis. Stat. chapter 11 expand the scope of protected activity, a line still remains that cannot be crossed. Making sure that contributions, disbursements, and communications comply with the applicable regulations can mean the difference between election of a favored candidate and exposure to civil and criminal penalties.95

    As a final note, one must keep in mind that John Doe II and Wis. Stat. chapter 11 apply only to Wisconsin state elections. Federal and out-of-state elections (and the speech accompanying those elections) remain subject to separate bodies of law, which may differ significantly.

    Meet Our Contributors

    What is your favorite thing about Wisconsin?

    Joseph S. DiedrichMy favorite thing about Wisconsin is the people. I mean that, to be sure, in the clichéd sense: yes, Wisconsinites by and large are friendly, earnest, and hospitable. But I also mean that in a more important sense: the people I love and care about are in Wisconsin. So much of place is people. A picturesque tropical island quickly turns ugly if you’re the only one there. And a barren tundra becomes beautiful if it’s home to your family and friends.

    The Badger State, neither tropical island nor barren tundra, is home to more of my family, friends, co-workers, and confidants than any other place on earth. That’s my favorite thing about Wisconsin.

    Joseph S. Diedrich, Husch Blackwell LLP, Madison.

    What’s the best career advice you ever received?

    Eric M. McLeodEstablish a close relationship with a mentor. I don’t recall if I actually received that advice, but the importance of a professional mentor became clear to me early in my legal career, and it is advice I consistently give to young lawyers entering the profession. In my experience, the practice of law offers new and different challenges on a daily basis. Each new matter presents new problems that one must solve. Learning from others who have relevant experience or a different perspective regarding that new problem is essential.

    I have had the good fortune to have a number of mentors over the years who have been generous with their time and their insights into the practice of law. Those mentors have included senior lawyers, peers, and even younger lawyers. They have assisted me in countless ways both professionally and personally and, even when I think I know the answer to a particular problem, their expertise usually improves the analysis. I have learned a great deal from my various mentors, and my ability to deliver quality legal services to my clients has been greatly enhanced as a result.

    Eric M. McLeod, Husch Blackwell LLP, Madison.

    Become a contributor! Are you working on an interesting case? Have a practice tip to share? There are several ways to contribute to Wisconsin Lawyer. To discuss a topic idea, contact Managing Editor Karlé Lester at (800) 444-9404, ext. 6127, or email Check out our writing and submission guidelines.


    1 Chisholm v. Two Unnamed Petitioners, 137 S. Ct. 77 (2016).

    2 See Wis. Stat. ch. 11 (2011-12); former Wis. Admin. Code ch. GAB 1-25. Chapter 11 has since been completely revised, see infra notes 92-94 and accompanying text, and the GAB regulations have been repealed.

    3 State ex rel. Two Unnamed Petitioners v. Peterson, 2015 WI 85, ¶ 15, 363 Wis. 2d 1, 866 N.W.2d 165, decision clarified on denial of reconsideration sub nom. State ex rel. Three Unnamed Petitioners v. Peterson, 2015 WI 103, 365 Wis. 2d 351, 875 N.W.2d 49, cert. denied sub nom. Chisholm v. Two Unnamed Petitioners, 137 S. Ct. 77 (2016) [hereinafter John Doe II]. “John Doe I,” initiated in 2010, involved allegations of “misuse of public resources in the Milwaukee County Executive’s Office.” Id. ¶ 14.

    4 The article does not consider the procedural or judicial propriety issues presented in John Doe II.

    5 John Doe II,2015 WI 85, ¶¶ 19, 70, 73, 363 Wis. 2d 1. See generally Respondent’s Br.

    6 John Doe II,2015 WI 85, ¶¶ 41, 44-47, 363 Wis. 2d 1; see also Wis. Const. art. I, § 3. The Wisconsin Supreme Court long ago declared that any election law that “destroys the right of free speech ... is to that extent void.” State v. Kohler, 200 Wis. 518, 561, 228 N.W. 895 (1930).

    7 John Doe II,2015 WI 85, ¶ 58, 363 Wis. 2d 1 (quoting Wis. Right To Life Inc. v. Barland, 751 F.3d 804, 808 (7th Cir. 2014) [hereinafter Barland II]).

    8 Id. ¶¶ 58-61.

    9 Id. ¶ 61 (quoting Wis. Stat. § 11.01(16) (2011-12)).

    10 Id. ¶¶ 63, 66-67 (citing Barland II, 751 F.3d at 833).

    11 See also infra notes 12-13, 34-52 and accompanying text.

    12 John Doe II,2015 WI 85, ¶ 7 n.4, 363 Wis. 2d 1.

    13 Federal Election Comm’n v. Wis. Right To Life Inc., 551 U.S. 449, 456 (2007) [hereinafter WRTL II]. Issue advocacy includes speech that mentions a candidate, so long as it does not expressly advocate for that candidate’s election or defeat. See id.; Barland II, 751 F.3d at 815.

    14 John Doe II, 2015 WI 85, ¶ 67, 363 Wis. 2d 1 (quoting Barland II, 751 F.3d at 815) (internal quotation marks omitted) (second brackets in original).

    15 Id. ¶ 72. The dissenters disputed that the prosecutor did not allege express advocacy. Id. ¶ 352 n.11, ¶ 398 n.29 (Abrahamson, J., concurring in part, dissenting in part); id. ¶ 561 (Crooks, J., concurring in part, dissenting in part).

    16 Id. ¶¶ 73-74.

    17 Id. ¶ 76.

    18 Justice Ann Walsh Bradley did not participate. Id. ¶ 138.

    19 Id. ¶¶ 420, 442-54, 460-83 (Abrahamson, J., concurring in part, dissenting in part); id. ¶¶ 567, 569-570, 582-600 (Crooks, J., concurring in part, dissenting in part). Indeed, “[t]he takeaway is that [t]he First Amendment vagueness and overbreadth calculus must be calibrated to the kind and degree of the burdens imposed on those who must comply with the regulatory scheme. The greater the burden on the regulated class, the more acute the need for clarity and precision.” Id. ¶ 584 (Crooks, J., concurring in part, dissenting in part) (quoting Barland II, 751 F.3d at 837) (internal quotation marks omitted).

    20 Id. ¶¶ 420, 442-454, 460-483 (Abrahamson, J., concurring in part, dissenting in part). The dissenters criticized the majority’s reliance on Barland II, noting that that case dealt with independent groups for which coordination was not at issue. Id. ¶¶ 452-454 (Abrahamson, J., concurring in part, dissenting in part); id. ¶¶ 598-599 (Crooks, J., concurring in part, dissenting in part).

    21 Id. ¶¶ 353, 366-367 (Abrahamson, J., concurring in part, dissenting in part); id. ¶¶ 560, 582-583 (Crooks, J., concurring in part, dissenting in part); compare id. ¶ 67 n.22 with id. ¶ 599 n.21 (Crooks, J., concurring in part, dissenting in part).

    22 See id. ¶¶ 450-454 (Abrahamson, J., concurring in part, dissenting in part); id. ¶¶ 601-625 (Crooks, J., concurring in part, dissenting in part). Neither dissent opined substantively on the prosecutor’s “subcommittee” theory. See id. ¶ 398 n.29 (Abrahamson, J., concurring in part, dissenting in part).

    23 Buckley v. Valeo, 424 U.S. 1, 39, 44-45, 47-48 (1976) (per curiam). The First Amendment protects speech without regard to its source. Citizens United v. Federal Election Comm’n, 558 U.S. 310, 342-43; First Nat’l Bank of Bos. v. Bellotti, 435 U.S. 765, 776 (1978); id. at 802 (Burger, C.J., concurring).

    24 Buckley, 424 U.S. at 14.

    25 McCutcheon v. Federal Election Comm’n, 134 S. Ct. 1434, 1441 (2014) (plurality opinion) (quoting Monitor Patriot Co. v. Roy, 401 U.S. 265, 272 (1971)); see also McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 346-47 (1995). The First Amendment applies to the states via the Fourteenth Amendment. Gitlow v. People of State of N.Y., 268 U.S. 652, 666 (1925).

    26 Buckley, 424 U.S. at 14 (quoting Roth v. United States, 354 U.S. 476, 484 (1957)); see also, e.g., Citizens United, 558 U.S. at 339; Mills v. Alabama, 384 U.S. 214, 218 (1966).

    27 WRTL II, 551 U.S. at 457.

    28 See 52 U.S.C. § 30101(9)(A).

    29 Buckley, 424 U.S. at 16-17.

    30 Watchtower Bible & Tract Soc’y of N.Y. Inc. v. Village of Stratton, 536 U.S. 150, 165-66 (2002).

    31 The precise level of scrutiny remains ambiguous and may depend on the particular regulation. In any event, it falls somewhere on a spectrum between “exacting” and “strict.” See Citizens United, 558 U.S. at 340, 366-67; Buckley v. American Constitutional Law Found. Inc., 525 U.S. 182, 214 (1999) (Thomas, J., concurring in the judgment); Buckley, 424 U.S. at 25. The governmental interests sufficient to justify campaign finance laws also are ambiguous and apparently context dependent. See McCutcheon, 134 S. Ct. at 1441 (plurality opinion); Buckley, 424 U.S. at 25-26; Barland II, 751 F.3d at 828.

    32 Cf. Hatchett v. Barland, 816 F. Supp. 2d 583, 596-97 (E.D. Wis. 2011) (musing that content-based regulations of nonpolitical speech are scrutinized more closely than content-based regulations of political speech).

    33 See John Doe II, 2015 WI 85, ¶¶ 64, 71, 363 Wis. 2d 1.

    34 424 U.S. 1; see also Federal Election Comm’n v. Massachusetts Citizens for Life Inc., 479 U.S. 238, 249 (1986).

    35 Buckley, 424 U.S. at 63-64, 77 (quoting FECA § 434(e)).

    36 Id. at 46-47, 62-63, 77-78 (quoting FECA § 431(e)(1), (f)(1)); see also John Doe II, 2015 WI 85, ¶ 420 & n.42, 363 Wis. 2d 1 (Abrahamson, J., concurring in part, dissenting in part).

    37 Buckley, 424 U.S. at 24, 60-64, 68-69, 80-81.

    38 Id. at 19-23 & n.24, 78.

    39 “Independent” refers to expenditures not made by a campaign or coordinated with one.

    40 Buckley, 424 U.S. at 19-23; cf. id. at 242 (Burger, C.J., concurring in part and dissenting in part) (questioning the difference in treatment between contributions and expenditures).

    41 Id. at 40-44, 54-59, 78-80.

    42 Id. at 44, 54-59, 76-82 (emphasis added). Indeed, “[d]iscussion of issues cannot be suppressed simply because the issues may also be pertinent in an election.” WRTL II, 551 U.S. at 474 (Roberts, C.J.).

    43 Cf. McConnell v. Federal Election Comm’n, 540 U.S. 93, 103 (2003) overruled on other grounds by Citizens United, 558 U.S. 310 (“[T]he express advocacy restriction is a product of statutory interpretation, not a constitutional command.”); Citizens United, 558 U.S. at 368-69 (determining that express–issue distinction was not needed with respect to “electioneering communications”); Barland II, 751 F.3d at 836-37 (commenting on Citizens United).

    44 Buckley, 424 U.S. at 44 n.52 (emphasis added).

    45 WRTL II, 551 U.S. at 456-57 (citing McConnell,540 U.S. 93).

    46 1979 Laws of Wis. ch. 328 § 27.

    47 Elections Bd. of State of Wis. v. Wisconsin Mfrs. & Commerce, 227 Wis. 2d 650, 669, 597 N.W.2d 721 (1999) (quoting Buckley, 424 U.S. at 80) (internal quotation marks omitted).

    48 John Doe II,2015 WI 85, ¶ 68 n.23, 363 Wis. 2d 1.

    49 Wisconsin Coal. for Voter Participation Inc. v. State Elections Bd., 231 Wis. 2d 670, 679-80, 605 N.W.2d 654 (Ct. App. 1999).

    50 Id. at 678-83 (quoting Buckley, 424 U.S. at 44); see also John Doe II,2015 WI 85, ¶ 450 n.76 (Abrahamson, J., concurring in part, dissenting in part).

    51 Barland II, 751 F.3d at 832-35.

    52 Id. at 809; see also John Doe II,2015 WI 85,¶¶ 452-454 (Abrahamson, J., concurring in part, dissenting in part); id. ¶¶ 598-599 (Crooks, J., concurring in part, dissenting in part).

    53 NAACP v. Alabama,357 U.S. 449 (1958).

    54 Id. at451-53.

    55 Id. at453.

    56 Id. at453, 458-59.

    57 Id. at462.

    58 Id. at462-63.

    59 Id.

    60 See Buckley, 424 U.S. at 22-29, 35-39, 44-45, 64-66, 69-75.

    61 Id. at 22.

    62 Id.

    63 See supra notes 23-27 and accompanying text.

    64 See, e.g., McIntyre, 514 U.S. at 358-69 (Thomas, J., concurring).

    65 Talley, 362 U.S. 60, 60-61 (1960).

    66 Id. at 64-65.

    67 United States v. Rumely, 345 U.S. 41, 56 (1953) (Douglas, J., concurring); Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting); see also Frederick Schauer, Hohfeld’s First Amendment, 76 Geo. Wash. L. Rev. 914, 922 & n.42 (2008).

    68 514 U.S. at 338 & n.3, 357.

    69 Id. at 345-47 (quoting Buckley, 424 U.S. at 14-15).

    70 Id. at 342-43.

    71 Id. at 348-53.

    72 Talley, 362 U.S. at 70 (Clark, J., dissenting); see also McIntyre, 514 U.S. at 371-85 (Scalia, J., dissenting). Compare American Constitutional Law Found., 525 U.S. 182 (arguably suggesting that anonymity is protected only when risk of harm is great enough) with Watchtower, 536 U.S. at 165-68 (arguably suggesting that that risk of harm is always great enough).

    73 Citizens United, 558 U.S. at 340, 367-71.

    74 McIntyre, 514 U.S. at 342 (emphasis added).

    75 See, e.g., Benjamin Barr & Stephen R. Klein, Publius Was Not a PAC: Reconciling Anonymous Political Speech, the First Amendment, and Campaign Finance Disclosure, 14 Wyo. L. Rev. 253, 256 (2014); Jonathan Turley, Registering Publius: The Supreme Court and the Right to Anonymity, 2002 Cato Sup. Ct. Rev. 57, 75-78.

    76 See supra notes 20-22 and accompanying text.

    77 See John Doe II,2015 WI 85, ¶ 560, 363 Wis. 2d 1 (Crooks, J., concurring in part, dissenting in part).

    78 See id. ¶ 448 (Abrahamson, J., concurring in part, dissenting in part) (quoting Federal Election Comm’n v. Christian Coalition, 52 F. Supp. 2d 45, 88 (D.D.C. 1999)) (second alteration in original).

    79 See id. ¶¶ 570, 594-600, 615-616 (Crooks, J., concurring in part, dissenting in part).

    80 See supra notes 34-52 and accompanying text.

    81 See supra notes 53-63 and accompanying text.

    82 See supra notes 64-75 and accompanying text.

    83 See supra notes 23-75 and accompanying text. See generally Joel M. Gora, Free Speech Matters: The Roberts Court and the First Amendment, 25 J.L. & Pol’y 63 (2016); Leslie Kendrick, First Amendment Expansionism, 56 Wm. & Mary L. Rev. 1199 (2015).

    84 Justice Prosser, concurring, did. See John Doe II,2015 WI 85,
    ¶¶ 243, 263-264, 363 Wis. 2d 1 (Prosser, J., concurring).

    85 John Doe II,2015 WI 85, ¶¶ 47, 50-52, 56, 63, 66, 75, 363 Wis. 2d 1.

    86 See supra notes 20-22 and accompanying text.

    87 See, e.g., John Doe II, 2015 WI 85, ¶ 64, 363 Wis. 2d 1.

    88 WRTL II, 551 U.S. at 457.

    89 Buckley, 424 U.S. at 39, 44-45, 47-48.

    90 Wis. Const. art. I, § 3.

    91 City of Mesquite v. Aladdin’s Castle Inc., 455 U.S. 283, 293 (1982) (“[A] state court is entirely free to read its own State’s constitution more broadly than this Court reads the Federal Constitution, or to reject the mode of analysis used by this Court in favor of a different analysis of its corresponding constitutional guarantee.”).

    92 See 2015 Wis. Act 117.

    93 Wis. Stat. § 11.0101(11).

    94 Wis. Stat. §§ 11.0100, 11.1203.

    95 Wis. Stat. §§ 11.1400, 11.1401.

Join the conversation! Log in to leave a comment.

News & Pubs Search

Format: MM/DD/YYYY