UNDER SEAL
STATE OF WISCONSIN
C 0 U R T OF A P P E A L S
DISTRICT I I IV
W
Case No. 2014AP

STATE of WISCONSIN ex rei. 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.
MEMORANDUM IN SUPPORT OF PETITION FOR
SUPERVISORY WRIT AND WRIT OF MANDAMUS
(FILED UNDER SEAL)

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

Address
Post Office Box 2143
Milwaukee, WI 53201
(414) 278-4659

Francis D. Schmitz
Special Prosecutor
Petitioner

 TABLE OF CONTENTS

I. INTRODUCTION ..................................................................................................... 1
II. ARGUMENT ........................................................-..................................................... 2

A. The Exercise of Supervisory and Original Jurisdiction is Proper on
These Facts ................................................................................................ 2

B. The John Doe Investigations Have Been Halted by Reason of the
Judge's Fundamental Misapplication of the Law ...................................... 4
C. Consistent with First Amendment Principles, Wisconsin Statutes and
Regulations Properly Regulate the Conduct of Coordination Between
50 1( c) Corporations and Political Committees, While Still Protecting
Truly Independent Speech ......................................................................... 6
1. Wisconsin Law Proscribes the Conduct Under Investigation, Even
When it Includes Issue Advocacy .......................................................... 6
2. There is Good Reason to Believe FOSW and the 50I(c) Respondents
May Have Violated Wisconsin Law .................................................... I 3

D. Wisconsin Laws Properly Differentiate Between Coordinated Speech
That is Regulated and Truly Independent Speech That is Protected ....... I 6
E. Wisconsin Coalition for Voter Participation, Inc. v. SEB Remains
Valid Controlling Precedent. ................................................................... 22
F Evidence Supports a Reasonable BeliefFOSW Coordinated With
Certain Independent Committees Who Engaged in Express Advocacy
Speech and Violated Wisconsin Law ...................................................... 23

III. CONCLUSION .................................................................................................... 25

 TABLE OF AUTHORITIES
CASES

Buckley v. Valeo, 424 U.S. 1 (1976) .................................................... passim
Cao v. FEC, 619 F.3d 410,427 (5th Cir. 2010) ..................................... 19,20
Center for Individual Freedom v. Madigan,
697 F.3d 464 (ih Cir. 2012) ................................. .- .................. 9, 10, 17, 19
Citizens United v. FEC,
558 U.S. 310, 130 S.Ct. 876,916 (2010) .......................................... passim
FEC v. Colorado Republican Federal Campaign Committee
(Colorado II), 533 U.S. 431 (2001) ................................................... 17, 18
FEC v. The Christian Coalition,
52 F.Supp.2d 45 (D.D.C. 1999) ............................................. 13, 19, 20, 23
FEC v. WRTL (WRTL II), 551 U.S. 449 (2007) .......................................... 20
Ide v. LIRC, 224 Wis. 2d 159, 589 N.W. 2d 363 (1999) .............................. 3
In re John Doe Proceeding,
2003 WI 30, 260 Wis.2d 653, 660 N.W.2d 260 ........................................ 3
Law Enforcement Stds. Bd. v. Village ofLyndon Station,
101 Wis.2d 472, 305 N.W.2d 89 (Wis. 1981) ........................................... 7
McConnell v. FEC, 540 U.S. 93 (2003) ................................................ 17, 21
State ex rei. Kenneth S. v. Circuit Court for Dane County,
2008 WI App 120, 313 Wis.2d 508, 756 N.W.2d 573 ............................. 3
State ex. rei. Reimann v. Circuit Court for Dane County,
214 Wis.2d 605, 571 N.W.2d 385, 386 (1997) ......................................... 4
State v. Washington, 83 Wis.2d 808,266 N.W.2d 597(Wis. 1978) ............. 4

ii

 Wisconsin Coalition for Voter Participation v. SEE,
231 Wis.2d 670, 605 N.W. 2d 654 (Wis. Ct. App. 1999) ..... 11, 22, 23, 24
WRTL v. Barland, 664 F.3d 139 (ih Cir. 2011) .................................... 18, 19

STATUTES
2 U.S.C. §431 (9)(A)(i)-(ii) .......................................................................... I 0
2 U.S.C. §441a(a)(7)(B)(i) .................................................................... 10, 17
Wis. Stat. §5 .05( 1)(f) .................................................................................... 7
Wis. Stat. §11.001 ................................................................................... 7, 19
Wis. Stat. §11.01(4) ...................................................................................... 9
Wis. Stats. §11.01(6)(a) .......................................................................... 9, 24
Wis. Stat. §11.01(6L) .................................................................................... 9
Wis. Stat. §11.01(16) .................................................................................. 10
Wis. Stat. §11.05 ......................................................................................... 12
Wis. Stat. § 11.05(1) ...................................................................................... 9
Wis. Stat. § 11.05(6) ...................................................................................... 9
Wis. Stat. § 11.06 ....................................................................................... 8, 9
Wis. Stat. §11.06(1) .......................................................................... 9, 12,22
Wis. Stat. § 11.06(2) ...................................................................................... 9
Wis. Stat. § 11.06(7) ........................................................................ I 0, 11, 23
Wis. Stat. §11.10(4) ................................................................................ 8, 12
Wis. Stat. § 11.12 ......................................................................................... I 2
Wis. Stat. §11.12(l)(a) ................................................................................ 24

iii

 Wis. Stat. § 11.16 ......................................................................................... 12
Wis. Stat. §11.20 ......................................................................................... 12
Wis. Stat. § 11.24(2) .................................................................................... 12
Wis. Stat. § 11.25( 1) .................................................................................... 12
Wis. Stat. § 11.26 ..................................................................................... 8, 12
Wis. Stat. § 11.27 ......................................................................................... 12
Wis. Stat. § 11.38 ........................................................................................... 8
Wis. Stat. § 11.38(l)(a)1 .............................................................................. 12
Wis. Stat. §11.60 ......................................................................................... 13
Wis. Stat. §11.61 ......................................................................................... 13
Wis. Stat. §227.11(2)(a) ................................................................................ 7
Wis. Stat. §968.20 ......................................................................................... 5
Wis. Stat. §968.26 ......................................................................................... 4
Wis. Stat. §990.0 1(26) .................................................................................. 9

REGULATIONS
Wis. Adm. Code GAB § 1.20 ...................................................................... 24
Wis. Adm. Code GAB §1.42 ................................................................ 10, 24
Wis. Adtn. Code GAB §1.42(1) .................................................................. 11
Wis. Adm. Code GAB §1.42(2) .............................................................. 9, 10
Wis. Adm. Code GAB §1.42(6)(a)1.a-c ..................................................... 11

iv

 LAW REVIEW ARTICLES
Bradley A. Smith, Super PACs and the Role of"Coordination" in
Campaign Finance Law, 49 Willamette L.Rev. 603,618-19 (Sumtner
2013) ................................................................................................... :6, 21
Richard Briffault, Coordination Reconsidered, 113 Colutn.L.Rev. Sidebar
88 (2013) .................................................................................................. 21
Thomas R. McCoy, Understanding McConnell v. FEC and its Implications
for the Constitutional Protection ofCorporate Speech, 54 DePaul L.Rev.
1043 (2005) .............................................................................................. 21

OTHER AUTHORITIES
El.Bd.Op. 00-2 ...................................................................................... 12, 13
OAB-05-1 0 .............................................................................................. 8, 24

v

 STATE OF WISCONSIN
C 0 U R T OF A P P E A L S
DISTRICT I I IV
Case No. 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.

MEMORANDUM IN SUPPORT OF PETITION FOR
SUPERVISORY WRIT AND WRIT OF MANDAMUS
I. INTRODUCTION
"Prearranged or coordinated expenditures" result in "disguised
contributions" and are subject to regulation, while only truly "independent
expenditures" are afforded the highest First Amendment protections. 1 The
John Doe judge correctly stated: "As a general statement, independent
organizations can engage in issue advocacy without fear of government

1

Buckleyv. Valeo, 424 U.S.1,25,46-47, 78(1976).

 regulation. However, again as a general statement, when they coordinate
spending with a candidate in order to influence an election, they are subject
to regulation. " 2

The John Doe judge (hereinafter "judge") did not apply

this state1nent of Wisconsin law to the facts of this case.
The facts before the judge provide reasonable belief that the Friends
of Scott Walker (FOSW) and its agents coordinated spending, strategy, and
fundraising purposefully and pervasively with a dozen or more 50l(c)
corporations to influence elections and subvert Wisc9nsin's campaign
finance laws. lJnder Wisconsin law and consistent with First Amendtnent
principles, it is the conduct of coordination that demonstrates the intent and
purpose to influence elections, resulting in regulated contributions.
II. ARGUMENT
A. The Exercise of Supervisory and Original Jurisdiction is

Proper on These Facts.
It is firmly established that the Court of Appeals may exercise
supervisory and original jurisdiction to issue prerogative writs over the
actions of a judge presiding over a John Doe proceeding. See In re John

Doe Proceeding, 2003 WI 30, ~~ 23 and 41, 260 Wis.2d 653, 660 N. W.2d

2

Schmitz Affidavit 15-17 (emphasis added) (hereinafter "Aff''). Unless otherwise
indicated. by the "f' symbol> the Affidavit references are to Bates Stamp page numbers.

2

 260. A supervisory or mandamus writ will not issue unless (1) an appeal is
an utterly inadequate remedy; (2) the duty of the circuit court is plain; (3)
the circuit court's refusal to act within the line of such duty or its intent to
act in violation of such duty is clear; (4) the results ofthe circuit court's
action must not only be prejudicial but 1nust involve extraordinary
hardship; and (5) the request for relief must have been tnade promptly and
speedily. See State ex ref. Kenneth S. v. Circuit Court for Dane County,
2008 WI App 120, ~8, 313 Wis.2d 508,756 N.W.2d 573.
No direct appeal may be taken from the judge's actions.
Petitioner's only remedy is this Writ. The Petitioner submits that the judge
misapplied Wisconsin law, as explained below. In addition, the judge
failed to address facts in the record substantiating a reasonable belief critnes
have occurred.
The judge's decision involves a question of law. It is reviewed de

novo. Ide v. LIRC, 224 Wis. 2d 159, 166, 589 N.W. 2d 363 (1999). The
erroneous application of the law and facts has resulted in the judge failing
to perfonn his duties, i.e., to enforce the subpoenas at issue and to maintain
the seized property as evidence for the investigation. The judge expressly

3

 invited appellate review to avoid further delays. 3 The Petitioner has
promptly sought relief. Accordingly, the Petition is well founded and the
requested relief should be granted.
B. The John Doe Investigations Have Been Halted by Reason of
the Judge's Fundamental Misapplication of the Law.
A John Doe proceeding under Wis. Stat. §968.26 is a special
investigative proceeding comtnenced, as allowed by law, on the basis of a
petition alleging a reason to believe that a crime has occurred within the
jurisdiction of the court. State ex. rel. Reimann v. Circuit Court for Dane
County, 214 Wis.2d 605,611, 571 N.W.2d 385,386 (1997). The John Doe
proceeding is not a procedure for the determination of probable cause so
much as it is an inquest for the discovery of crime. State v. Washington, 83
Wis.2d 808, 822, 266 N.W.2d 597(Wis. 1978).
These investigations involve an inquiry into possible violations of
campaign finance law. 4 Obviously, no charges have been brought. The
judge's ruling abruptly halted a portion of the investigations, effectively
concluding that there was no reason to believe any crime had been
committed. Consequently, this writ proceeding is not about some
3

"Any reviewing com1 owes no deference to my rationale, so giving the parties a result is
more important tha[n] a delay to write a lengthy decision on election and constitutional
law." See Aff.l5.
4
The John Doe Petitions are found at Aff. Pp. 797, 800, 805, 809 and 814.

4

 misapplication of"probable cause" standards to the facts ofthis case. It is
about the judge's rejection of a fundmnental premise of one portion of the
investigation.

That pretnise is this: the conduct of coordination is

legitimately regulated by Wisconsin law and this is true even when a
candidate/candidate cmnmittee acts in concert with a person engaging in
issue advocacy. More than that, however, the judge also failed to
appreciate another portion of the investigation evidencing instances of
coordination by FOSW or its agents with persons engaged in express
advocacy.
For these reasons, no discussion of the standards relating to the
issuance and/or scope of subpoenas is required. There is no dispute now
before the court that the subpoenas sought information within the scope of
the original petitions or that the requested docmnents were relevant to the
purposes of the investigation. Likewise, no analysis of the Order returning
property is appropriate at this juncture. Although he quashed subpoenas
and ordered the return of property (but did so without any hearing under
Wis. Stat. §968.20), the judge acted in this tnanner because of his rejection
of an original premise of the issue advocacy portion of the investigation and
because he failed to appreciate the express advocacy evidence in the record.

5

 The balance of this Memorandum focuses on the legal reasons why
this inquiry rests on a finn statutory and constitutional foundation.
C. Consistent with First Amendment Principles, Wisconsin
Statutes and Regulations Properly Regulate the Conduct of
Coordination Between 501( c) Corporations and Political
Committees, While Still Protecting Truly Independent Speech.
1. Wisconsin Law Proscribes the Conduct Under Investigation,
Even When it Includes Issue Advocacy

This is an investigation about conduct-direct dealing with an
officeholder or his agents while offering something of value-which
provides unique opportunities for corruption to occur aJ?d avoid statutorily
mandated campaign finance restrictions and disclosure. 5 This investigation
is not about persons engaging in their "own speech" that is truly
independent from political committees and thus protected by the First
Amendment. The coordinating conduct by a candidate, political
committee, or their agents with purported independent issue advocacy
501 (c) corporations results in the corporations disseminating the
candidate's or political cmnmittee's speech. Rather than examining-

5

Bradley A. Smith, Super PACs and the Role of "Coordination" in Campaign Finance
Law, 49 Willamette L.Rev. 603 (Summer 2013)(citing Buckley, 424 U.S. at 30).

6

 under Wisconsin statutes and regulations 6 - the conduct of coordination
and the lack of 50 I (c) corporations' independence from candidates and/ or
political com1nittees, the judge mistakenly focused only on the type of
resulting speech, i.e., issue advocacy.
The clearly stated purpose of Wisconsin's campaign finance laws is
set o~t in legislative findings at Wis. Stat. § li.OO I (emphasis added):
The legislature finds and declares that our democratic system
of governtnent 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. . . . 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 United States Supreme Court has also found that the citizens'
''right to know" is inherent in the nature of the political process.
Transparency enables the electorate to make informed decisions and gives
proper weight to different speakers and messages, even for speech that does
6

Administrative rules are given the effect of law and subject to the same principles of
construction as statutes. See Law Enforcement Stds. Bd. v. Village of Lyndon Station, 101
Wis.2d 472,489,305 N.W.2d 89 (Wis. 1981); "Perhaps the first rule of construction as
to administrative rules and regulations is that rules made in the exercise of a power
delegated by statute should be construed together with the statute to make, if possible, an
effectual piece of legislation in harmony with common sense and sound reason." !d. The
Government Accountability Board has both specific and general statutory authority to
promulgate rules for the purposes of interpreting or implementing the laws regulating the
conduct of elections or election campaigns or ensuring their proper administration. See
Wis. Stats. §§5.05( I )(f) and 227.11 (2)(a).

7

 not contain express advocacy. Citizens Unitedv. FEC, 558 U.S. 310,371
(20 10). In addition, the Wisconsin Attorney General has formally opined
that to the extent Wisconsin ad1ninistrative rules itnpose registration,
reporting, or disclaimer requirements on independent expenditures that are
not express advocacy, Citizens United does not make the rules
unconstitutional. OAG-05-10,

~36

(August 2, 2010).

This investigation focuses on the degree of coordination between
501(c) corporations and candidate or other political committees, as well as
between purported independent political com1nittees and candidates. Under
Wisconsin law, the act of coordination between ostensibly "independent
entities" (such as 501(c) corporations) and political cotnmittees has one of
the following effects:
( 1) For candidate committees, the "independent entity" is
deetned a subcommittee of the candidate's personal campaign
co1n1nittee (Wis. Stat. § 11.1 0( 4)) and all legal contributions 7
and disburse1nents must be disclosed on the candidate's
catnpaign finance reports pursuant to Wis. Stat. § 11.06, or
(2) For all political committees, coordinated expenditures
tnust be disclosed as in-kind contributions on the political

7

Contributions exceeding statutory limits and direct or indirect corporate contributions
are not legal. Wis. Stats. §§ 1 1.26, 11.38.

8

 committee's campaign finance reports pursuant to Wis. Stat.

§ 11.06.
Every c01nmittee must register and must file full campaign finance
reports that include contributions received, contributions or disburse1nents
made, and obligations incurred. Wis. Stat. §§ 11.05(1) and (6). C01nmittees
cannot make contributions or disbursem~nts prior to registering. Wis. Stat.

§ 11.06( I). Even a comtnittee that is not priinarily organized for political
purposes is required to report any disbursement that constitutes a

contribution to any candidate or other individual, committee or group. See
Wis. Stat. § 11.06(2).
A person, 8 including a 501 (c) corporation, is a "cotninittee" under
Wisconsin statutes, if engaged in 1naking or accepting contributions or
making disbursetnents, whether or not engaged in activities which are
exclusively political. Wis. Stat. §11.01(4). 9 "Making or accepting
contributions" includes the following two acts, among others: 1) tnaking or
accepting a gift of s01nething of value tnade for political purposes (Wis.
Stat. § 11.01 (6)( a)); or 2) tnaking a "coordinated expenditure." Wis. Adm.
8

A "person" includes a limited liability company and a corporation. Wis. Stats.
§§ 11.01 (6L) and 990.0 I (26).
9
See also Center for Individual Freedom v. Madigan, 697 F.3d 464, 487 (7 111 Cir.
2012)(Po1itica1 committees need only encompass organizations that are under the control
of a candidate and expenditures of"po1itica1 committees" so construed can be assumed to
fall under government regulation and are, by definition, campaign related.)

9

 Code GAB § 1.42(2). Wisconsin law provides that expenditures made in
cooperation or consultation, or in concert with, or at the request or
suggestion of any candidate, authorized c01nmittee, or their agent are
deemed "contributions" to such candidate and must be treated and reported
as such. Wis. Ad1n. Code GAB 1.42(2).

10

This Wisconsin regulation is

nearly identical to federallaw. 11 See also Center for Individual Freedom
(CJF) v. Madigan, 697 F.3d 464,496-96 (ih Cir. 2012)(Upheld Illinois'

coordination law and noted that Buckley upheld similar federal provision).
An act is for a "political purpose[s] when it is done for the purpose
of influencing the election ... of any individual to state or local office [or]
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).
10

The language in Wis. Adm. Code GAB § 1.42 uses the broader term "expenditure"
instead of"disbursement" when prescribing the activities that become subject to Wis.
Stat.§ 11.06(7). This rule adopted the Federal coordination language and thus established
a broader category of activity that constitutes a contribution to a candidate committee,
including coordinated expenditures. The Legislative history of Wis. Stat. § 11.06(7)
shows a direct intent to adopt the Federal coordination language. See Affidavit of Kevin
J. Kennedy ~1 O.a.iii and Exhibit 4 (November 30, 1979 Letter to Gail Shee instructing
that the Federal coordination provision language should be added to the revisions of Wis.
Stat.§ 11.06(7).)
11
"Expenditures made by any person in cooperation, consultation, or concert, with, or at
the request or suggestion of, a candidate, his authorized political committees, or their
agents, shall be considered to be a contribution to such candidate." 2 U.S.C.
§44la(a)(7)(B)(i). The tenn ''expenditure" includes any purchase, payment, distribution,
loan, advance, deposit, or gift of money or anything of value, made by any person for the
purpose of influencing any election for Federal office and a written contract, promise or
agreement to make an expenditure. 2 U.S.C. §431(9)(A)(i)-(ii).

10

 Importantly, "political purpose" "is not restricted by the cases, the statutes,
or the code, to acts of express advocacy." Wisconsin Coalition for Voter
Participation v. SEB, 231 Wis.2d 670, 680, 605 N.W. 2d 654 (Ct. App.
1999)(hereinafter WCVP).
Furthermore, Wisconsin law provides that no ''expenditure" tnay be
made or obligation incuned over $25 in support of or opposition to a
specific candidate unless such expenditure or obligation is reported as a
"contribution" to the candidate or the candidate's opponent, or is made or
incurred by a "committee" filing the voluntary oath specified in Wis. Stat.
§ 11.06(7). Wis. Adm. Code GAB § 1.42( I). Coordination between a
candidate com1nittee and another entity is presutned- and "any
expenditure" of that entity is treated as an in-kind contribution to the
candidate comtnittee- when the expenditure is made as a result of a
decision by a person who is an officer, a compensated campaign worker, or
otherwise an agent ofthe candidate's campaign comtnittee. Wis. Adm.
Code GAB §1.42(6)(a)l.a-c.
Finally, Wisconsin law specifically requires financial disclosure
when a candidate works in concert with a second comtnittee.
Any committee which is organized or acts with the
cooperation of or upon consultation with a candidate or agent

11

 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 candidate's personal campaign
committee.
Wis. Stat. §11.10(4). By operation of law, any person coordinating with or
acting at the request or suggestion of the Governor Scott Walker or his
committee, FOSW, is deemed to be a subcommittee ofFOSW. That person
is subject to all cmnpaign finance contribution prohibitions, limitations, and
disclosure requirements applicable to FOSW. See, e.g., Wis. Stats.
§§ 11.05; 11.06( 1); 11.12; 11.16; 11.20; 11.24(2); 11.25(1 ); 11.26; 11.27;
11.38(1)(a)l.
Wisconsin law clearly distinguishes between coordinated activities
and truly independent activities. It prohibits unlimited and undisclosed
spending for coordinated activities even if the resultant speech is issue
advocacy. In the context of First Amendment principles, the forn1er State
Elections Board explained the application of Wisconsin statutes and
regulations to coordinated activities. See El.Bd.Op. 00-2, pp. 8-13
(affirmed by the G.A.B. on 3/26/08). Wisconsin law treats any coordinated
expenditure made at the request or suggestion of the candidate or his agent
as a contribution. See id. at pp. 11-12 citing FEC v. The Christian

12

 Coalition, 52 F.Supp.2d 45, 98 (D.D.C. 1999). If the spender's
communication is made at the request or suggestion of the campaign- or
the spender and the cmnpaign act in a joint venture - the coordinating
conduct results in a contribution regardless of whether the c01nmunication
contains issue advocacy. See El.Bd.Op. 00-2 at p. 12. Violations of these
laws carry both civil and criminal penalties and such regulation of
coordinated conduct is consistent with the First Amendtnent. See Wis.
Stats. §§ 11.60 and 11.61.
2. There is Good Reason to Believe FOSW and the 501 (c)
Respondents May Have Violated Wisconsin Law.
In accepting the John Doe Petitions, the initial judge found there was
reasonable beliefthat a crime has occurred. Information available to the
judge provided a reasonable belief that FOSW and its agents, utilized and
directed 501 (c) corporations, as well as certain political committees, to
circutnvent Wisconsin's campaign finance contribution limitations and
disclosure laws. As one exmnple, Governor Walker and Keith Gilkes, the
FOSW cmnpaign manager, discussed vetting contributions prior to
acceptance, thus giving rise to the reasonable inference that s01ne
contributors were directed to Wisconsin Club for Growth (WiCFG) to

13

 avoid public disclosure by FOSW. 12 At this early stage of the John Doe
investigation, the State seeks to obtain additional information relevant to
this and other coordination activities.
There is ample additional evidence providing a reasonable belief that
the conduct of coordination between FOSW and 50l(c) corporations was
done for the purpose of influencing the recall from or retention in office of
the Governor and State Senators, or the elections, during the 2011 and 2012
recall elections. This is a political purpose. As a result of this "conduct,"
the speech of the 501 (c) corporations was not their own, but rather that of
Governor Walker and FOSW. R.J. Johnson was an agent ofFOSW and
WiCFG, among other 50l(c) corporations. 13 His own words remove any
doubt that the 501 (c) corporations intended to influence elections.
Ads were run on poll tested issues, including fiscal
responsibility, tax hikes, wasteful spending and spending
priorities that moved independent swing voters to the GOP
candidate. 14
There was also sufficient evidence to provide a reasonable belief that
the conduct of coordination resulted in "contributions" within the 1neaning
of Wisconsin law. This conduct is within the scope of campaign finance
12

Aff.333-34 Furthermore, the accompanying Petition contains an extended discussion of
the facts referenced in this and other sections of the Argument.
13
Aff.407-08.
14 !d.

14

 regulation, thus requiring disclosure of such contributions. In quashing the
subpoenas and ordering the return of property, the judge focused on
coordinated fundraising; however the coordinated conduct was far more
extensive. The conduct included detailed discussions and agreements
regarding: cmnpaign strategies and messages; fundraising; production,
dissemination, and spending for print, telephone, radio, and television
advertising. See Petition, pp. 8-18. Other conduct included the execution
of, and spending for, opposition research, polling, and Get Out The Vote
efforts ("GOTV"). Id. FOSW agents, like R.J. Johnson, Kate Doner, and
Deborah Jordahl, were simultaneously agents ofWiCFG, Citizens for a
Strong America (CFSA), and other 50l(c) corporations. See Petition pp. 810.
FOSW agents, like Johnson and Doner, planned and executed efforts
through WiCFG to "ensure correct messaging." 15 FOSW agents had direct
control over WiCFG and according toe-mails, Governor Walker himself
wanted "all the issue advocacy efforts run thru one group" to avoid "past

15

Ajj.'385.

15

 problems with multiple groups doing work on 'behalf of Gov. Walker."

16

FOSW agents specifically stated:
In Wisconsin, a 50l(c)(4) is the legal vehicle that runs the
media/outreach/GOTV campaign. The Governor is
encouraging all to invest in Wisconsin Club for Growth. 17
An August 18, 2011 email sum1narizes the coordination that occurred
during the 2011 recall elections. 18
Our efforts were run by Wisconsin Club for Growth and
operatives R.J Johnson and Deb Jordahl, who coordinated
spending through 12 different groups. Most spending by
other groups was directly funded by grants from the Club. 19
The coordination included direct control over advertising scripts and
placement. See Petition, pp. 12-13.

D. Wisconsin Laws Properly Differentiate Between Coordinated
Speech That is Regulated and Truly Independent Speech That is
Protected.

Neither the right to associate nor the right to participate in political
activities is absolute. Buckley v. Va!eo, 424 U.S. 1, 25 (1976).
"Prearranged or coordinated expenditures" are equivalent to "disguised
contributions," subject to the smne limitations as contributions. !d. at 25,
46-7, 78. Any restrictions on coordinated expenditures are subject to only
16/d.
Id. (emphasis in original).
18
Aff.407.
19
Aff.407-08 (emphasis added).
17

16

 the intermediate level of scrutiny-the restriction 1nust be closely drawn to
tnatch a sufficiently important govern1nent interest. Buckley, 424 U.S. at
25; See also FEC v. Colorado Republican Federal Campaign Committee

(Colorado II), 533 U.S. 431,456 (2001).
Ever since our decision in Buckley, it has been settled that
expenditures by a noncandidate that are 'controlled by or
coordinated with the candidate and his campaign' may be
treated as indirect contributions subject to FECA's source and
amount limitations.

McConnell v. FEC, 540 U.S. 93, 202, 219-223 (2003); CIF v. Madigan,
697 F.3d at 496.
The U.S. Supretne Court reaffinned this rationale when it declared
"coordinated spending [is] the functional equivalent of contributions."

Colorado II, 533 U.S. at 447. Coordinated expenditures for
communications, even those that avoid express advocacy, are treated as
contributions. McConnell, 540 U.S. ·at 202. 20 In the context of a political
party's coordinated expenditures with candidates of that party, the United
States Supretne Court specifically held"[ c]oordinated expenditures, unlike

expenditures truly independent, may be restricted to minimize

20

Upholding application of2 U.S.C. §441 a(a)(7)(B)(i)-(ii) to coordinated expenditures
for communications that avoid express advocacy, which are contributions.

17

 circumvention of contribution limits." Colorado IL 533 U.S. at 465
(emphasis added).
Restrictions on contributions are preventative to ensure against the
reality or appearance of corruption created by circumvention of valid
contribution limits. See Colorado II, 533 U.S. at 456; Citizens United, 558
lJ.S. at 356. Contribution limitations and disclosure regulations, whether
by direct contribution or resulting from coordinated expenditures, are
closely drawn restrictions designed to limit the actuality and appearance of
corruption resulting from large individual contributions. This is a
sufficiently important government interest to support regulation. Buckley,
424 U.S. at 25-26.
The First Amendment permits the government to regulate
coordinated expenditures. WRTL v. Bar/and, 664 F.3d 139, 155 (ih Cir.
2011) (Sykes, J.) (citing Colorado II, 533 U.S. at 465). 21

11

The need for an

effective and c01nprehensive disclosure systetn is especia11y valuable after

Citizens United, since individuals and outside business entities may engage
in unlimited political advertising so long as they do not coordinate tactics

21

The Seventh Circuit also emphasized that the "separation between candidates and
independent expenditure groups" negates the possibility that independent expenditures
will lead to, or create the appearance of, quid pro quo corruption. WRTL, 664 F.3d at
155.

18

 with a political campaign or political party." CJF, 697 F .3d at 487
(emphasis added). See also Wis. Stat.§ 11.001.
"By definition, an independent expenditure is political speech
presented to the electorate that is not coordinated with a candidate."
Citizens United, 558 U.S. at 360 (citing Buckley, 424 U.S. at 46). Collusion
between a candidate and an independent comtnittee is evidence that the
independent committee is not truly independent and thus would not qualify
for the free-speech safe harbor for independent expenditures. WRTL v.
Bar/and, 664 F.3d at 153, 155. A candidate's coordination conduct which
provides knowledge of advertisement "content plus timing makes a huge
difference relative to the benefit of the ad to the candidate." Cao v. FEC,
619 F.3d 410, 427, 433-34 (5th Cir. 201 0). This is the type of coordinated
activity that ilnplicates the sa1ne corruption and circumvention concerns of
the Colorado II court. I d.
An organization engaged in "issue advocacy" that coordinates with a
candidate is subject to campaign finance regulations; the lack of
independence tnakes the expenditures contributions. FEC v. Christian
Coalition, 52 F.Supp.2d 45, 91-2, 98-9 (D.D.C. 1999). Where a candidate
has requested or suggested that the spender engage in certain speech, where

19

 the candidate or agents can exercise control over expenditures, or where
there has been substantial discussion or negotiation between the campaign
and the spender over expenditures, such conduct gives the expenditures
sufficient contribution-like qualities to fall within the regulation of
contributions. I d. This conduct indicates that the speech is valuable to the
candidate, regardless of its content. I d.
In the proceedings below, the Respondents relied heavily upon FEC

v. WRTL (WRTL II), 551 U.S. 449 (2007) and Citizens United v. FEC, 558
U.S. 310 (20 10) for the proposition that the First Amendment requires a
court to err on the side of protecting political speech rather than suppressing
it. Such reliance is misplaced because WRTL II addressed only truly
independent advertisements and no question was raised regarding
coordination. See Cao v. FEC, 619 F.3d 410,435 (5th Cir. 2010). In

Citizens United, the Supreme Court rejected the contention that disclosure
requirements are limited to speech that is the functional equivalent of
express advocacy. The Court detennined that while disclaimer and
disclosure requiretnents may burden the ability to speak, they "impose no
ceiling on campaign-related activities" and "do not prevent anyone from

20

 speaking." ld. at 366-67, citing Buckley, 424 U.S. at 64 and McConnell,

540 U.S. at 201.
.Contrary to the judge's assertion that the law has changed in the last
fifteen years, legal scholars agree that Buckley and its progeny permit
limiting contact between speakers and the candidate or his agents,
otherwise known as coordination. 22 The only issue debated is the level of
contact between a candidate and the speaker required to establish
coordination. Some scholars suggest a broad coordination standard without
substantial discussion or negotiation. 23 Other scholars argue that the
coordinating conduct 1nust meet the Christian Coalition joint venture
standard. 24 Regardless, legal scholars agree that- at a minimum- the

Christian Coalition joint venture standard remains an uncontroverted basis
to find coordination sufficient to treat purported independent expenditures
as contributions consistent with First Amendment speech and association
rights. 25

22

See e.g. Smith, supra n.8; Richard Briffault, Coordination Reconsidered, 113
Colum.L.Rev. Sidebar 88 (20 13); Thomas R. McCoy, Understanding McConnell v. FEC
and its Implications for the Constitutional Protection of Corporate Speech, 54 DePauJ
L.Rev. 1043 (2005).
23
Briffault, supra n.27.
24
Smith, supra n.8.
25
Smith and Briffault, supra n.8,27.

21

 As set forth below, Wisconsin adopted the Christian Coalition joint
venture standard.

E. Wisconsin Coalition for Voter Participation, Inc. v. SEB
Remains Valid Controlling Precedent.
In WCVP, the Court applied Buckley's determination that
"prearranged or coordinated expenditures" are equivalent to "disguised
contributions." The Court addressed issues nearly identical to those
presented in this case and ruled against the parties seeking to halt an
investigation into illegal coordination between a candidate's campaign and
an issue advocacy entity.
Contributions to a candidate's cmnpaign must be reported whether or

not they constitute express advocacy. See WCVP, 231 Wis.2d at 679
(emphasis in original). See also Wis. Stat. § 11.06(1 ). The fact that a third
party runs "issue ads" versus "express advocacy ads" is not a defense to
illegal "coordination" between a candidate's authorized committee and
third party organizations. WCVP, 231 Wis.2d at 679
The First A1nendtnent cannot be interpreted to bar an investigation
into potential violations of the state's campaign finance law as a
consequence of coordination. WCVP, 231 Wis.2d at 679. WCVP rejected
the argument that Wisconsin law first requires speech in the form of

22

 express advocacy before regulation may attach and it rejected due process
notice arguments. The WCVP Court referenced a federal court's ~'c01n1non
sense" legal analysis applying coordination principles to issue advocacy
expenditures, treating them as contributions subject to regulation. WCVP,
231 Wis.2d at 686, fn. 11 citing FEC v. The Christian Coalition, 52
F.Supp.2d at 92. The court specifically stated:
... the issue before us has nothing to do with the Coalition's
partisan or non-partisan status, or the content of its tnailing.
It concerns only the Board's investigation into whether the
Coalition, no tnatter what purpose it was organized for, and
no matter whether some, 1nany, or tnost people might think
the message on the cards wasn't advocating one candidate
over the other-made an unreported in..:kind contribution to
the Wilcox catnpaign.
WCVP, 231 Wis.2d at 683, 605 N.W.2d at 660-661.
F. Evidence Supports a Reasonable Belief FOSW Coordinated
With Certain Independent Committees Who Engaged in
Express Advocacy Speech and Violated Wisconsin Law.

Wisconsin statutes specifically provide that a committee wishing to
make a truly independent disbursement must affirm that it does not act in
concert with, or at the request or suggestion of, any candidate or agent or
authorized committee of a candidate. Independent committees must sign an
oath. Wis. Stat. § 11.06(7). If an independent committee makes
disbursetnents that are coordinated with a candidate or agent, that

23

 committee is no longer considered "independent." Its disbursements
become reportable in-kind contributions to the candidate's campaign
committee. Wis. Ad1n. Code _GAB §§1.20, 1.42. See also WCVP, 231
Wis.2d 670 at fn. 2 citing Wis. Stats. §11.01(6)(a)l. and ll.12(l)(a). See
also OAB-05-1 0, ,120 (recognizing that a "disbursement" may also qualify
as a "contribution" under Wisconsin statutes).
The judge did not focus on evidence in the record that at least two
political committees expressly advocated either for Governor Walker and
Senate recall candidates or expressly advocated against their opponents.
Coordination regarding such express advocacy was in direct contravention
of the oaths ofindeperident disbursements. 26
Emails docmnent coordination between the Republican State
Leadership Cmnmittee Inc. ("RSLC"), a registered independent
disbursement committee, and FOSW agents during the 2011 recall
elections. In one such email from R.I. Johnson to an RSLC representative,
Johnson wrote:
Need to know that you are up and the content of your spot.
We are drafting radio to cotnpletnent. Also need to know if
you plan to play any further in WI beyond Halperin. 27
26

Aff. 225-26, 286-292.

27

Aft. 2 I 9-20, 400-0 I.

24

 These plans were then shared with Governor Walker, Keith Gilkes and
Kate Doner in an email dated July 13, 2011. 28
Evidence also included eight separate advertisements sponsored by
Right Direction Wisconsin PAC (political committee of the Republican
Governor's Association [RGA]) critical of Governor Walker's opponents in
the 2012 Gubernatorial recall election. 29 Additional emails document that
agents of FOSW were regularly conducting meetings and conference calls
with the RGA 30 to discuss campaign strategy, including polling. 31

III. CONCLUSION
Based on the Petition for Supervisory Writ and Writ of Mandamus
and the authorities set forth herein, the Petitioner requests the relief sought

28

Aff
Aff
JO Ajf.
31
Aff
29

293.
227-30.
234,236.
242.

25

 in the Petition so that this investigation can proceed without further delays.
Specifically, the Petitioner requests an order that:
1. Vacates the Hon. Gregory A. Peterson's January 10,2014 Order

quashing the subpoenas and directing the return of property seized
by search warrants.
2. Directs the John Doe judge to enforce the subpoenas served upon the
Respondents.
3. Grants such other equitable relief as the Court may deem just and
appropriate.
Dated this ·t.\>S day ofF ebruary 20 14.

Respectfully subtnitted,

Attorney Francis D. Sch i z
Petitioner and Special Prosec
Wisconsin Bar No. 100023

Address
Post Office Box 2143
Milwaukee, WI 53201
(414) 278-4659

26

 CERTIFICATION
I certify that this Me1norandu1n confonns with the rules contained in Wis.
Stat. §809 .19(8)(b) and (c), for a Memorandum produced using
proportional serif font. The length of the portions of this Memorandum
described in Wis. Stat. §809.19(1)(d), (e) and (f) is 4,996 words. See Wis.
Stat. §809.19(8)(c)l. In c01nbination with the Petition that this
Memorandutn supports, the total word count is under 8,000. See Wis. Stat.
§809 .5 I (1 ).
Dated this

~:r

~

day ofF ebruary 20 14,

Attorney Francis D. S...., . . UJ·~~..._
Petitioner and Special Prosecutor
Wisconsin Bar No. 100023
Address
Post Office Box 2143
Milwaukee, WI 53 20 1
(414) 278-4659

27