STATE OF WISCONSIN

BEFORE THE JOHN DOE JUDGE

IN THE MATIER OF A JOHN DOE PROCEEDING
Columbia County Case No. 13JD000011
Dane County Case No. 13JD000009
Dodge County Case No. 13JD000006
Iowa County Case No. 13JD000001
Milwaukee County Case No. 12JD000023
(Judge Barbara A. Kluka for all proceedings)
(PROCEEDINGS SUBJECT TO SECRECY ORDER)

[L

NOTICE OF APPEARANCE FOR FRIENDS OF SCOTT

To:

1 7 2013

Special Prosecutor Francis D. Schmitz
P;O.. Box 2143
Milwaukee, WI 53201

PLEA~E TAKE NOTICE that Friends of Scott Walker (FOSW),

STATE OF WISCONSIN
CIRCUIT COURT FOR DANE COUNlY

a recipient of a

subpoena in the above-named action, appears by Attorneys Steven M. Biskupic and Michelle L.
Jacobs ofBiskupic & Jacobs, S.C. A copy of all paper:s in this acti<?n shoul~ be served upon

these attorneys at the address stated below.
Dated this 16th day of October, 2013.

Respectfully submitted,

'
attorney Steven M. Bisk:upic
State Bar ID No. 1018217
Attorney Michelle L. Jacobs
State Bar ID No. 1021706
Biskupic & Jacobs, S.C.
Attorneys for Friends of Scott Walker
1045 W. Glen Oaks Lane, Suite 106
Mequon, WI 53092
262..241-0033

 BEFORE THE JOHN DOE JUDGE

STATE OF WISCONSIN
IN THE MATTER OF A JOHN DOE PROCEEDING

Columbia County Case No. 13JD000011
Dane County Gase No. 13JD000009
Dodge County Case No. 13JD000006
Iowa County Case No. 13JD000001
Milwaukee County Case No. 12JD000023
(Judge Barbara A. Kluka for all proceedings)

-~{J-----;\L::--1,"~-,r.[E~_r~=\'\.

(PROCEEDINGS SUBJECT TO SECRECY ORDER)

To:

Special Prosecutor Francis D. Schmitz
P.O. Box2143
~vvauke~ VVI53201

'PLEASE TAKE NOTICE that Friends of Scott Walker (FOSW) moves the Court
pursuant to Wis.Stat § 968.135 to quash the subpoena issued October 1, 2013 to FOSW. The
grounds for the motion are set forth in the accompanying memorandum. The motion shall he
heard at a date, time and place to be set by the Court.
Dated this 16th day of October, 2013.
Respectfully submitted,
i

Attorney Steven M. Biskupic
State Bar ID No. 1018217
Attorney Michelle L. Jacobs
State Bar ID No. 1021706
Biskupic & Jacobs, S.C.

Attorneys for Friends of Scott Walker
1045 W. Glen Oaks Lane, Suite 106
Mequon, WI 53092
262-241-0033

 STATE OF WISCONSIN

BEFORE THE JOHN DOE JUDGE

IN THE MATTER OF A JOHN DOE PROCEEDING

Columbia County Case No. 13IDOOOO! 1
Dane County Case No. 13JD000009
Dodge County Case No. 13JD000006
Iowa County Case No. 13JD000001
Milwaukee County Case No. 12JD000023
(Judge Barbara A. Kluka for all proceedings)

--~-----------------

(PROCEEDINGS S~JECT TO SECRECY ORD

MEMORANDUM IN SUPPORT OF MOTION TO
OCTOBER 1, 2013 SUBPOENA TO FRIENDS OF SCO

1].

~

STI\TE OF WISCONSIN
CIRCUIT COURT FOR DANE COUNlY

The Special Prosecutor in the above-named proceedings served a John Doe Subp~na

Duces Tecum on Friends of Scott Walker (FOSW). The return date of the subpoena is October
29, 2013. By its terms, the subpoena seeks almost every document, whether electronic or hard

copy, in the possession of FOSW from 20~ 1-2012. The subpoena encompasses literally

hundreds of thousands, if not more than a million documents. There is no question that the
subpoena is constitutionally and statutorily defective and must be quashed under the standards
set forth by the Wisconsin Supreme Court in In re John Doe Proceeding, 2004 WI 65, 272 Wis.
2d 208,235,680 N.W.2d 792,805 opinion modified on denial ofreconsiderationsub nom. In re
Doe Proceeding Commenced by Affidavit Dated July 25,2001,2004 WI 149,277 Wis. 2d 75,

689 N.W.2d 908.

In addition, this Court should exercise its supervisory authority to insure that any reissued
subpoena is as narrowly tailored as the First Amendment and Wisconsin law require. The
current subpoena was served three days before an opponent announced her opposition to Scott
Walker for the 2014 gubernatorial election. This current subpoena also means that every state-

 wide race of FOSW in the last four years will coincide with John Doe scrutiny. The subpoena
and comments by the Special Prosecutor indicate this investigation is centered on campaign
finance, political speech, and the concept of"coordination" between candidates and non~
candidate entities and individuals. Because· the Special Prosecutor has apparently undertaken an
investigation squarely in the scope of critical First Amendme~t political speech protections, this
Court should undertake exacting, special consideration of what the law does and does not permit
with respect to regulation in these areas.

I.

Background
On March 1, 2013, the Milwaukee County District Attorney publicly announced the

closing of a John Doe proceeding involving an investigation of campaign activity tied to FOSW.
See Bice & Umhoefer, John Doe probe ofScott Walker office closed with no new charges,

JSOnline·(March 2, 2013}, http://www.jsonline.com/news/milwaukee/report-scott-walk:er-probeclosed-with-no-new-charges-qh8vsfb-19419409l.html (site visited Oct. 14, 2013). The threeyear investigation involved hundreds of witnesses and hundreds of thousands of documents. Id.
On October 3, 2013, the Special Prosecutor served the current John Doe subpoena on

FOSW. The Special Prosecutor indicated ~hat he was working in conjunction with investigators
and lawyers from the Milwaukee County District Attorney's Office. The Special Prosecutor
further indicated the scope of the investigation included improper "coordination" and the
resulting failure to properly report campaign donations.
The subpoena, included herein at Tab A of the Appendix, is eight pages long, and lists
two-dozen organizations or political committees affiliated ~th conservative issues. Compliance
is demanded by October 29, 2013.

2

 II.

The subpoena must be quashed as unconstitutionally overbroad.

The power wielded by the prosecutor in John Doe proceedings is considerable. As a
result, there is real and serious potential for the substantial infringement of an individual's
constitutional rights, including their First Amendment right to free speech and their Fourth
Amendment right to be free of unreasonable searches and seizures. The prosecutor must
maintain keen awareness of individual rights, and exercise its powers cautiously. And, the
presiding judge must ensure that those powers are exercised with "due regard for the rights of the
witnesses, the public, and those whose activities may be subject to investigation." State v.

0 'Connor, 77 Wis.2d"261, 284; In re John Doe Proceeding, 2004 WI 65 at~ 56, 272 Wis. 2d at
243, 680 N.W.2d at 808 (internal citations omitted). The broad, untailored, and sweeping nature

of the subp<?ena served on FOSW strongly indicates that the prosecutors here did not exercise
such care here.
A subpoena issued in a Jolm·Doe proceeding must satisfy both statutory requirements and

constitutional concerns. Statutorily, the judge presiding over the John ~oe has authority to issue
a subpoena for documents under Wis. Stat. § 968.135. The request for the subpoena must be·

supported by an affidavit establishing probable cause that the requested data is limited to the
subject matter described in the John Doe petition, and that the data requested is relevant to the
subject matter of the John Doe proceeding. In re Doe Proceeding Commenced by Affidavit
Dated July 25, 2001, 2004 WI 149, 277 Wis. 2d at 78, 689 N.W.2d at 910.

Constitutionally, the subpoena must be narrowly tailored to avoid the Fourth Amendment
problem of unreasonable overbreadth. In short, it must specify the documents requested with
reasonable particularity:. Id
The constitutional problem inhere~t in a lack of particularity, and thus an overly broad
subpoena for documents, is analogous to the problem inherent in a general warrant: Overly
3

 broad subpoenas "are held unreasonable in that their lack of specificity allows the government to
go on an indiscriminate fishing expectation, similar to that provided by a general warrant.'' In

re

John Doe Proceeding, 2004 WI 651f 50,272 Wis. 2d at 239, 680 N.W.2d at 807 (citing Marron
v. United States, 275 U.S. 192, 196,48 S. Ct 74 (1927); and Boyd v. United States, 116 U.S.
616, 625-26 (1886)). "As the Un\t~ States Supreme Court has explained, a subpoena is 'equally
[as] indefensible as a search warrant would be if couched in similar [general] terms." Id.
(quoting Hale v. Henkel, 201 U.S. 43, 77 (1906)).
As addressed below, the sweeping subpoena served on FOSW is almost wholly
untailored: it demands what are probably hundreds of thousands, if not more than a million
pages of documents and emails, demands. information from potentially thousands of people who
were associated with FOSW during 2011-12, and requires production of almost every shred of
paper or electronic document the organization generated or maintained for the entire two-year
period covered by the subpoena.
The Wisconsin Supreme Court quashed a similar subpoena in In re John Doe

Proceeding, supra. That case arose out of the John Doe investigation of the political caucuses in
the late 1990s. A subpoena was served on the Legislative Technology Services Bureau (LTSB),
· demanding the backup tapes for all 54 servers used by the LTSB to maintain legislators',
constituents' and service agency emails, web pages, and office computer systems. Alternatively,
the subpoena requested all electronically stored documents for certain identified legislators,
aides, or persons who worked for the caucuses. 272 Wis.2d at 215.
The LTSB moved to quash the subpoena on several grounds, including a challenge that
the subpoena was overbroad and thus unreasonable under the Fourth Amendment. Id. at 215-16.
Reversing an initial denial of the motion, the Supreme Court quashed the subpoena. The Court

4

 held that the subpoena was overly broad, and thus unconstitutional, because it failed to
sufficiently specify or narrow the topics or the types of documents sought. For example, rather
than provide key word searches which could be used to search the LTSB databases for relevant
material, the subpoena demanded all records for specific individuals. Equally problematic, the
subpoena failed to limit the time period covered by the requests. Id. at 239-40.
In a follow-up opinion clarifying its holding quashing the subpoena, the Court directed

that any future subpoena limit the requested documents to the subject matter described in the
John Doe petition; demonstrate the documents requested are relevant to the subject matter of the
John Doe proceeding; specify the documents requested with reasonable particularity; and cover a
reasonable period of time. In re Doe Proceeding Commenced by Affidavit Dated July 25, 2001,
2004 WI 149, 277 Wis. 2d at 78, 689 N.W.2d at 910.
The subpoena -served on FOSW is. similarly, constitutionally flawed. Just as in the LTSB
case, rather than tailor or narrow the requests with any level of particularity, the subpoena

demands almost everything FOSW generated in 2011 and 2012.
Consider paragraphs 1(a) and 1(b) of the subpoena. The latter specifies the names of 12
people or entities, and requests copies· of contracts or agreements between FOSW and any of
those twelve. This request is tailored, and will allow for FOSW to search for and disclose any
such agreements.
In stark contrast, paragraph 1(a) [incorporating Attachment A] is not tailored at all.

Paragraphs 5(a) and (c) of the attachment require FQSW to disclose every communication,
including every email, between any agent ofFOSW on the one hand, and any director, officer,
agent or employee (none of whom are identified) of 26 organizations and the campaign

committees of three recall elections. With no particularity as to identities of people, dates, or

5

 topics for search, FOSW would have to do an email-by-email review of what are most certainly
at least hundreds of thousands of emails sent or received by any agent, employee, officer, or
director ofFOSW during 2011 and 2012.
Likewise, paragraphs S(f), S(g) and S(h) will require compilation and disclosure of likely
hundreds of thousands, if not millions of documents. Paragraph S(f) covers every bill, invoice,
receipt, financial document or any other record of any expendi~e, disbursement or transfer
made in connection with FOSW, before, during, and after the gubernatorial recall. Paragraph
S(g) requires disclosure of every bank record, credit card bill, and other record associated with
every such bill, receipt, expense, disbursement or transfer. And paragraph S(h) requires FOSW
to identify every communication, including every email, related to every such financial
transaction. Taken together, these provisions essentially demand every shred of paper related to

every financial transaction of the campaign colll1D:ittee, down to things such as the payment of
office telephone bills or parking meter expenses of its employees.
Without some level of particularity, these requests make the subpoena unconstitutionally
overbroad. With no narrowing or specificity as to the type(s) of :financial transactions or people
or organizations with whom they were conducted, FOSW would have to review and analyze the
substance of every email communication of every FOSW director, officer, employee, or agent, to
determine whether they address financial transactions, and will have to review every shred of
paper or computer record to detemrine the same. As might be obvious from the nature of these
overly broad requests, FOSW has no practical way to conduct such review or assure compliance
with the subpoena.
As a final example, consider paragraph S(d). It demands all records of calendars or other
records (which would presumably include telephone records) on "Recall reiated topics and

6

 issues." Yet again, this request is entirely untailored. It would require the disclosure of the
entire calendar and all telephone records of Governor Walker, every employee of FOSW, and all.
of the thousands of agents and volunteers ofFOSW who were working on recall-related business
during a substantial portion of the time period covered by the subpoena.
These examples demonstrate the practical impossibility of complying with such an
overbroad and thus constitutionally infirm subpoena. They also demonstrate that compliance
with the subpoena would be unfairly and unduly burdensome and oppressive, and prohibitively

expensive, for FOSW. For all of these reasons, the subpoena must be quashed.

III.

Attorney-Client privilege concerns must be respected

In light of the sweeping nature ofthe subpoena, including overlap with the prior John
Doe investigation, attorney-client privileged material will almost certainly fall within the
parameters of the subpoena. FOSW (as an organization) and several of its principals had
separate, retained counsel throughout the time period covered by the subpoena, not only for
purposes of representation on the previous (Milwaukee County) John Doe investigation, but also
for routine legal advice on campaignwrelated issues. Becaus_e the subpoena fails to particularize
the email communications and documents sought, the sheer volume of material FOSW would be
required to tum over results in substantial risk of disclosure of privileged communications. This
is particularly serious here because the very prosecutors and investigators receiving the material
are prosecutors and investigators on the fonner John Doe proceeding.
We have had initial discussions with the Special Prosecutor about our concern in this
regard, but were not assured that there is any system of taint/review in place to assure respect for
and integrity of the attorney-client privilege, nor were we assured that the ,Special Prosecutor has

7

 sufficient information (identification of counsel for each principal or the person or entity they
represent) to set up such a review system.
IV.

Under the First Amendment and Wisconsin law, Scott Walker, his agents, and those
individuals otherwise involved with his authorized campaign committee were
permitted to engage in coordinated, First Amendment-protected issue advocacy
with any independent party for all of 2011 and that part of 2012 prior to April 9 for
purposes related to a potential recall. For purposes of "coordinated" activity
regarding other candidates, Scott Walker, his agents, and representatives have no
time or date limits when then· involvement with third parties is restricted.

Under Wisconsin campaign finance laws, the sole restrictions on "coordination" of

protected First Amendment communications regarding candidates exist in Wis. Stat. § 11.06(7)
and Wis. Admin. Code § 1.42. Under those.provisions, "coordination" between an independent
group and an elected official such as Scott Walker (and his agents) becomes subject to the
campaign finance restrictions in Chapter 11 of the Wisconsin Statues only when:
(1)

Scott Walker becomes a "clearly identified candidate,, in "any election";

(2)

the candidacy is "supported or opposed"; and

(3)

the coordination involves "expenditures, done for a political pw::pose by a group

outside the campaign in support of that particular candidacy in a particular election (as opposed
to some other candidate or candidates involved in other elections). Wis. Stat.§ 11.01(16)(a)(l)
(defining "political purpose"), Wis. Stat. § 11.06(7)(a) ("clearly identified C8;Udidatt}" in any
"election"); and Wis. Admin. Code§ 1.42 (coordination, cooperation or consultation). And of
course, all ofthese considerations are made in the context of political activity in speech, where
the First Amendment has its fullest and most urgent application. See, e.g., Eu v. San Francisco

County Democratic Central Comm., 489 U.S. 214,223, 109 S. Ct. 1013 (1989).
During the time period of 2011-12 covered by the subpoena, Scott Walker did not
become a '·'supported or opposed candidate" until after April9, 2012. Moreover, even after that

8

 point, Walker, his agents, and those involved in his authorized campaign were pennitted to
engage in "coordinated" activity and communications regarding other candidates because the
statute and regulation apply only to coordination between a candidate and groups supporting that
candidate.
A.

The First Amendlnent and Issue Advocacy

''There is practically universal agree~ent that a major purpose of the First Amendment
was to protect the free discussion of governmental affairs, includ[ing] discussion of candidates."'
Wis_consin Right to Life State Political Action Committee v. Barland [Government Accountability
Board], 664 F.3d 139, 151-52 (7th Cir. 2011) (quoting Ariz. Free Enterprise Club's Freedom
PACv. Bennett, 131 S. Ct. 2817,2828 (2011)). Any individuals (including those holding
elective office) may combine., whether informally or formally, for the purpose of engaging in
what is known as "issue advocacy" under First Amendment protections. See Citizens United v.
FEC, 558 U.S. 310, 130 S. Ct. 876 (2010); Buckley v. Valeo, 424 U.S. 1, 96 S. Ct. 612 (1976);
Elections Board ofthe State of Wisconsin v. Wisconsin Manufacturers & Commerce, 227 Wi~.2d
650, 597 N.W.2d 721 (1999). By definition, issue advocacy is the discussion of the public
policy issues facing someone in elective office and subject to re-election. Jd. at 664.. 665, 597
N.W.2d at 728-29.
Restrictions o~ issue advocacy, such as those found in Chapter 11 of the Wisconsin
Statutes; must conform to First Amendment standards under the "most rigorous judicial review"
or they are invalid. Wisconsin Right to Life, 664 F.3d at .152, 155 (permanently enjoining the
application of Wis. Stat. § 11.26(4) contribution limits on independent third-party expenditure
committee).

9

 B.

"Express Advocacy v. Issue Advocacy"

The distinction between "express advocacy'' and "issue advocacy'' is at the heart of
Wisconsin's regulatory scheme involving campaign fmance laws and independent
disbursements. In fact, the Wisconsin Elections Board Opinion on the matter uses that exact
headline in attempting to offer guidance. See Wis. Elections Bd. Op. 00-2, at 3 ("A. Express
Advocacy v. Issue Advocacy").
Individuals (including elected officials) or groups, alone or in concert, may engage in
issue advocacy without subjecting themselves to the campaign finance and other restrictions of
Chapter 11 "if the message does not e~ressly advocate the election or defeat of a clearly
identified candidate." ld. See also Wisconsin Right to Life, 551 U.S. at 469. As long as the
advoc3:cy does not involve the explicit advocacy of the election or defeat of a candidate, the
advocacy is not subject to restriction, including those set forth in Chapter 11. ld.; see also, Wis.
Stat.§ 11.06(16) (defining communications for ''political purposes" as "the making of a
commuriication which expressly advocate the election, defeat, recall, or retention of a clearly
identified candidate or a particular vote or referendum) (emphasis added). If, however, the
communication at issue uses a term such as ''vote for,'~ "elect," "support," "defeat," or the like,
the communication becomes political advocacy,

or "express advocacy," subjecting the

communication to restrictions under law, including Chapter 11. Id.
The Supreme Court of the United States, more than three decades ago, articulated this
bright line in order to ensure that the citizenry would know which speech is subject to regulation
and which speech is not subject to government regulation. See Buckley v. Valeo, 424 U.S. 1, 96
S. Ct. 612 (1976).

10

 Wisconsin law clearly recognizes this standard: speech which does not, in express terms,

advocate the election or defeat of a clearly identified candidate is not political speech subject to
government regulation. See Wis. Stat. §11.01(16){a)(l) (communication: for political purpose is
one "which expressly advocates the election, defeat, recall, or retention of a clearly identified

candidate''); see also Wis. Elections Bd. Op. 00-2 (reaffumed Mar. 26, 2008).
The phrase "clearly identified candidate" is repeated in Wis. Stat. § 11.06{7) and section
1.42 of the Government Accountability Board (GAB) regulations adds an additional important
caveat: the candidate at issue must be either "supported" or "opposed" in an election at the time

of the issue communication. Wis. Admin. Code§ 1.42. If the communication falls within these
qualifications, then the expenses associated with the communication are subject to Chapter 11
restrictions, most particularly "coordination" (discussed below). If these conditions are not met,
then the communication is not and cannot be subject to Chapter 11.

Tills First Amendment distinction is dramatically present on the national level, where
President Barack Obama established and controls a third party advocacy group, Organizing for
America, which has raised millions of dollars as an IRS § 501(c)(4) organization. See Matea
Gold, uOrganizingfor Action·raises $4.8 million in first quarter,, Los Angeles Times Aprill2,
2013, hl!p://arlicles:latimes.com/2013/apr/12/news/la-pn-organizing..for...action-fundraising20130412 (site visited October 11, 2013). Those who contributed $500,000 or more were
permitted to attend quarterly meetings with the president at $e White House.. See·Mike Allen,

uPlayboo"' 6 days to sequester,~~ Politico.com (Feb. 23, 2013) http://www.politico.com/
playbook/0213/playbook10090.html (site visited October 11, 2013).
Elected officials must be permitted such activity because ''[t]he Supreme Court
repeatedly has explained that elected officials do not park their constitutional rights at the door

11

 when they assume public office." In re John Doe Proceeding, 2004 WI 65,272 Wis. 2d 208,
235,680 N~W.2d 792,805 opinion modified

on denial ofreconsiCZerationsub nom. In re Doe

Proceeding Commenced by Affidavit Dated July 25, 2001, 2004 WI 149, 277 Wis. 2d 75, 689
N.W.2d 908 (citing Republican Party ofMinnesota v. White, 536 U.S. 765, 788; 122 S. Ct. 2528
(2002) (overturning restriction on speech of candidates for office, including incumbents, because
the law violates First Amendment)).

C.

"Coordination,~:

the distinction between restricted and unrestricted activity

A nuanced and potentially complex area of the law arises when third party organizations
make communications regarding issues, and reference or depict elected officials who are also
candidates or potential candidates at the same time, in those communications~ See, e.g.,
Richard Briffault, Coordination Reconsidered, Columbia Law Review (May 2013)

http://www.columbialawreview.org/coordination-reconsidered briffault/ (site visited October 11,
2013) (explaining that in 2012 elections, ·"the coordination/independence distinction at the center
of the contribution/expenditure divide essentially collapsed due to the emergence of singlecandidate Super Political Action Committees"); see also Wis. Elections Bd. Op. 00-2, at 8 ("In
this tension between permissible [campaign] contribution limits and impermissible independent
-

~

expenditure limits, the [Buckley] court recognized that the necessity of regulating expenditures
that were so 'coordinated' with a campaign that they ceased to be independent and were enough
like contributions to be treated as such.")
Wisconsin's campaign finance statute provides that an "express advocacy"
communication coordinated by the campaign with an outside group making the communication,
is subject to Chapter 11 and the contribution limits in the statute. Wis. Stat § 11.06(7). The

purpose of the coordination requirements is to enforce contribution limitations: "Without a

12

 coordination rule, politicians could evade contribution limits and other restrictions by having
donors finance campaign activity directly-- say, [by] paying for a TV ad or printing and
distributing posters." Shays v. F_ederal Election Commission, 414 F.3d 76, 97 (D.C. Cir. 2005).
In Wisconsin, restricted "coordination'' between an advocacy group and a campaign is
defined under Wis. Admin. Code § 1.42(2): The advocacy group's expenditures become
reportable campaign contributions "if the expenditures or obligations incurred are made in
. cooperation or consultation with any candidate or agent or authorized committee of a candidate
who is supported or opposed." See also Wis. Stat. § 11.06(7) (referencing that support or
opposition in conjunction with any "election") (emphasis added).
The coordinated disbursement also must be for the express support of the candidate
involved in the coordination, and specifically referenced in the communication - not the
candidacy of somerine uninvolved in the coordination or not even referenced in the
communication. See Independent Disbursements ofCorporations and Non-Political
Organizations, GAB 128 (May 2012) (coordination must be with a candidate "supported by the

disbursement").
Therefore, for an expenditure to become an in-kind campaign contribution to the
identified candidate, the following elements must be met:
(1) the disbursement by a third party must involve coordination between the third party

with a "clearly identified candidate" or agent of such candidate in an "election";
(2) at the time of the disbursement, the candidacy was "supported or opposed" (in terms
of the communication itself); and

13

 (3) the coordination must have involved "expenditures" for a communication in support
of that particular candidate with whom the third party group engaged in "coordinating" the
communication (as opposed to some other candidate or candidates involved in other elections).
These coordination regulations are of course .limited by the First Amendment. "The
freedom of speech ... guaranteed by the Constitution embraces at the least the liberty to discuss
publicly and truthfully all matters of public concern without previous restraint or fear of
subsequent punishment." First National Bank ofBoston v. Bellotti, 435 U.S. 765,776,98 S. Ct.
1407 (1978). This protected activity extends to advocacy that may reference or depict those
already in office, as well as candidates seeking elective office. See Federal Election Commission
v. Wisconsin Right to Lifo, Inc., 551 U.S. 449, 127 S. Ct. 2652, 168 L. Ed, 2d 329 (2007).
D.

Scott Walker was not a "supported or opposed" recall "candidate"
untll after April9, 2012.

The 2012 recall election of Governor Scott Walker was the first gubernatorial recall in
the history of Wisconsin. Governor Walk:er's candidacy on the recall election ballot was a
matter of constitutional and statutory rights, triggered by the successful presentment, review and
"filing" of a sufficient number of proper recall petition signatures. As set forth below, those
triggering events were not completed untll Aprll9, 2012. Accordingly, Governor Walker was
not a "supported or opposed" recall "candidate," subject to restrictions on coordination of
communications regarding his own candidacy until after April9, 2012. Indeed, recall candidates
must be distinguished from other candidates when applying the coordination provisions because
one becomes a recall "candidate" only by operation of law, not by voluntary decision to run for
office. Equally important, at no point do the restrictions apply when Scott Walker, his agents or
representatives engage in coordination activities re~arding communications in support of or
opposition to candidates other than recall candidates for governor.

14

 1.

Recall in Wisconsin

The right to recall in Wisconsin began in 1911, when the legislature enacted a statute
allowing for recall of municipal officials. 1 The requirements for recall were straightforward:
"any city officer holding an elective office," who had been jn office for at least six months,

would be forced to face the voters again within 50 days if a petition were submitted with
signatures equaling at least 1/3 of the city":wi~e vote total from the last gubernatorial election.
The petition was required to contain a general statement of the grounds upon which removal was
sought and tb:e signatures had to be collected within a 30-day period. The signed petitions were
to be presented to the city clerk, who was given 10 days to insure that the appropriate number of
signatures had been submitted. 2

Recall did not apply to Wisconsin state office holders until the state constitution was
amended in 1926.3 The constitutional amendment was similar to the ~xistingmunicipal recall
statute, except that the state incumbent had to be in office for one year before a recall (instead of
just six months), and the number of necessary signatures. was 25 percent of the prior
gubernatorial election total (as opposed to 33 percent for municipal officials).4
Another seven years passed before the state legislature enacted statutes providing the
''machinery governing recall elections" similar to those in place for municipal recalls. 5 For
example, the legislature imposed requirements for the circulation of the petitions (similar to

Wis. Sessio~ Laws, Chapter 635, at 843-44 (July 12, 1911) (creating section 94jM1) see also Stahovic v. .Rajchel,
122 Wis.2d 370, 376, 363 N.W.2d 243, 245 (Wis. Ct. App. 1984) (the right to recall municipal officials is a statutory
creation; the recall of congressional, judicial or non-municipal legislative officers is a constitutional right).
2
Wis. Session Laws, Chapter 635, at 843-44.
3
See Laws of Wisconsin, chapter 270 at 348-49 (June 11~ 1925) (creating Wis. Const art. XIII, section 12).
4
Laws of Wisconsin, chapter 270, at 348.
5
Letter from Chief of Legislative Reference Library to George Brown, Office of the Secretary of State, Chapter 44,
Laws of 1933 drafting records (December 23, 1932) (regarding creation of Wis. Stat. § 6.245 as "machinery to
govern recall elections").
1

15

 normal nomination procedures); review by the appropriate election official (limited to three
days); and the necessity of a primary (for opponents of the incumbent only).6

2.

Current Recall Statute

The modem version of the recall statute is contained. in Wis. Stat. § 9.1 0. It contains
three main parts: general guidelines relating to the circulation of a petition, specific
requirements for the face of the recall petition, and standards for review and scheduling of a
recall election by a government agency. Wis. Stat.§ 9.10 (2011-12).
(a) General Guidelines
Section 9.10(1) provides that any elected official in Wisconsin maybe subject to a
recall. 7 To commence a recall, the petitioners must file a declaration of intent with the
appropriate election official - in the case of the governor, the GAB. See Wisconsin Government
Accountability Board Recall of Congressional, County and State Officials, Wisconsin GAB
(June 2009), http://gab.wi.gov/sites/default/files/publication/65/recall_manual_for_

congressional_county_and_state_82919.pdf (site visited May 20, 2013). If petitioners file a
declaration, the GAB must publicly announce the necessary number of signatures. Wis. Stat.
§ 9.1 0(d). In most cases, the necessary number of signa~res will be 25 percent ofthe votes cast
during the prior gubernatorial election. Wis. Stat§ 9.10(b).
(b) Specific Petition Requirements

Section 9.10(2) sets forth a laundry list of requirements for the actual recall petition and
the signatures to be gathered, including:
•

6
7

The petition·m~t contain the words "RECALL PETITON" in bold print on the top of
every page.

Wis.Stat. §6.245(3) (1933).
.
The preamble of Art. XIII, section 12 requires the office holder to have served one year before being subject to

recall.

16

 •

The signatures must be gathered within a 60-day period.

•

Each individual signature must be from a "quali~ed elector'' and must be dated.

•

The circulator of the petition must certify that he or she properly collected each of the
signatures on each page.

See Wis. Stat.§ 9.10(2){a), (d), (e)7, (em).
(c) Review/scheduling by a government agency

Under Wis. Stat. § 9.1 0{3){b), if a recall petition is submitted ("offered for filing''), the
election official to whom the petition is submitted (normally the GAB) has 31 days to complete a
"careful examination" of whether the petition on its face is sufficient to call for an election. The
grounds for challenge, which are not exclusive, are listed in Wis. Stat.§ 9.10(2)(e)-(s). Within
that 31-day period, the incumbent has 10 days in which to file objections. Wis. Stat. § 9.1 0(3).
The recall petitioners then receive 5 days to file a "rebuttal," and the incumbent has 2 days to file
a reply. If the election official determines that the petition is insufficient, its decision must set
forth the particular reasons for the deficiencies and give the petitioners 5 days to correct any
errors. During this 31-day period, any party may seek an extension of the 31-day time limit.by
establishing ''good cause" to the local circuit (county) court. ld.
If the election official accepts the petition for filing, the incumbent has 7 days to file a

writ of mandamus or prohibition in the circuit court, challenging the agency determination. Wis.
Stat. § 9.1 O(bm). At that point, the only matter that the court may consider is whether the
petition was sufficient Id. If the pe~tion is sufficient, the recall election proceeds.
The recall election is scheduled for the Tuesday of the sixth week after the petition filing.
If a primary Is required, that date becomes the primary and a general election is held four weeks

later. Wis. Const. art. XIII, §12(2), (4)(c).

17

 3.

The recall candidacy of the Incumbent is a matter of constitutional
and statutory right

Under Article XIII, section 12(4) of the Wisconsin Constitution, "Unless the incumbent
[subject to recall] ~eclines within 10 days after the filing of the petition, the incumbent shall
without filing be deemed to have filed for the recall election." Wis. Stat.§ 9.10(3)(c) contains
similar language. The procedures for other "candidates" are the same as the normal election
nomination procedures. Wis. Stat.§ 9.10{3)(c).

4.

The Walker Recall

Governor Walker was elected governor ofWisconsin in November 2010 and was sworn
in on January 3, 2011. The recall effort against Governor Walker .became formal on November

15, 2011, when the Committee to Recall Walker filed the necessary registration with the GAB ..
The Committee then had 60 days to gather the required number of signatures, which the GAB
calculated to.be 540,208. 8
The Committee to Recall Walker submitted almost 1 million signatures. 9 After a legal
fight involving the amount of time allowed for the Walker campaign and the GAB to review
signatures, 10 the parties (both supporting and opposing recall) and the GAB came to an
agreement on the sufficiency of the recall petitions an4 the scheduling of the recall election. The
parties agreed with the GAB recommendation that the gubernatorial recall election be held on the
same date as the other pending recall elections, including that of the Lieutenant Governor and

8

See Committee to-Recall Walker, Wis. GAB, http://gab.wi.gov/node/2100 (site visited May 21, 2013). A second
Walker recall group, "Close Friends to Recall Walker, filed registration papers as well, but did not submit
signatures. See Close Friends to Recall Walker, Wis. GAB, http:l/gab.wi.goylnode/2085 (site visited May 21, 2013).
9
Committee to Recall Walker, Wis. GAB, htt;p://gab.wi.gov/node/2100 (site visitedMay21, 2013).
10
See In Re: Petitions to Recall Governor Scott Walker et al, Case No. 12-CV-0295 (Dane County Circuit Court
2012) (involving not just the recall against Governor Walker, but also the simultaneous effort to recall Lieutenant
Governor Kleefisch and four state senators). The GAB ultimately deterinined that the number of valid signatures
was 900,939. See Committee to Recall Walker~ Wis. GAB, http://gab.wi.gov/node/2100.

18

 four state senators. 11 The parties also agreed that the recall petition would be "filed" as of March
30,2012, thereby providing for a recall primary (if needed) to be held May 8, 2012, and the
general election to follow on June 5, 2012. 12 The Dane County Circuit Court approved this
agreement at a hearing on March 14, 2012. Therefore, according to Wisconsin constitutional and
statutory provisions, Governor Walker became a ''candidate" 10 days after the "filing" date of
March 30, 2012 -- April9, 2012.
E.

The Subpoena

The subpoena received by FOSW references the recall campaign fo~ governor, recall
campaigns of various state senators, and dozens of organizations. Some of these groups would
be subject to Chapter 11 restrictions on "coordinated', activity involving FOSW; others would
not. See Wis. Stat. § 11.06(7)(a). The subpoena makes no distinction.
To properly narrow the focus of the subpoena, one must not only examine what conduct
constitutes coordination or consultation, but also which organizations are subject to the
restrictions on disbursements under such coordination.
The definition of "contribution" limits the scope of the independent disbursement statute
to donations of money "made for a political purpose." Wis. Stat.§ 11.01(6)(a)(l). Specifically
excluded from the definition of "contribution" is a donation of money or ''anything of value
received by a committee or group not organized exclusively for political purposes that the group
or committee does not utilize for political purposes." Wis. Stat § 11.01(6)(b)7 (emphasis added).
The italicized words are critical limitations on the scope of the independent
disbursements statute. The term "group[s] not organized exclusively for political purposes"
11

See Judge approves May, June 5 recall dates, WQOW, Mar. 13,2013,
http://www.wqow.com/stmy/17152190/all-sides-agree-to-may-8-june-5-for-recalls?clienttvPe=orintable (March 13,
2013) {site visited May 22, 2013) (Wisconsin judge has signed off on an agreement for May 8 and June 5 recall

dates).
12Id.

19

 refers to organizations exempt from taxation because they are trade associations,13 such as the
Wisconsin Chamber of Commerce, and social welfare organizations14 such as the Club for
Growth. By contrast, campaign committees, political action committees, and political parties are
all organized primarily for political purposes and are exempt from taxation under a different
statute. 15
Groups covered by the exclusion from the definition of contribution may not use the
donated funds ''for political purposes." This tennis defined, in part, as ''for the purpose of
influencing the recall from or retention ~ office of an individual holding a state or local office."
Wis. Stat. § 11.01(16). The definition of political purpose goes on to provide one example of .
activity within its scope: "Acts which are for 'political purposes' include but are not limited to
... [t]he making of a communication which expressly advocates the election, defeat, recall or
retention of a clearly identified candidate...." Wis. Stat.§ 11.01(16)(a)(l) (emphasis added).
Any communication which is not, by its express terms, calling for the election or defeat

of a clearly identified candidate is still considered for a political purpose if it is susceptible of no
other reasonable interpretation other than as an appeal to vote for or against a specific candidate
in a specific election. Wis. Stat. § 11.06(7); Wis. Admin. Code § 1.28(3){b). The regulations
also contain a specific window wherein there is a presumption of no reasonable interpretation, if
the communication includes a reference to or depiction of a clearly identified candidate and
certain references to the candidate's positions, personal qualities or public record. Id.

Although the Legislature intended the "political purposes~' requirement to encompass
express advocacy communications, adhering to the bright line standard in Buckley, it did not
specify the breadth of this term, leaving it to the GAB and the courts to determine the extent to
13

26 U.S.C. § 501(c)(6).
26 U.S.C. § 501(c)(4).
IS 26 U.S.C. § 527.

14

20

 which speech could be regulated without infringing on First Amendment rights. The Wisconsin

Supreme Court has concluded that where no express advocacy "terms" appear in a
communication, there are a limited number of other facts that may nonetheless qualify a
communication as express advocacy and subject it to government regulation. Elections Bd. of

State of Wis. v. Wisconsin Mfrs. & Commerce, 227 Wis. 2d 650, 668, 597 N.W.2d 721, 730
(1999).

The GAB was equally circumspect in determining the scope of regulated speech
otherwise permitted by the indep~ndent disbursements statute, for purposes of detennining
whether J?Olitical speech is independent or not. Its regulation on voluntary committees provides
"Guidelines" on which expenditures are independent and which must be considered in-kind
contn"hutions subject to contribution limits. An expenditure ''on behalf of a candidate will be

presumed to be made in cooperation or consultation with any candidate [if it] is made as a result
ofa decision in which any ofthe following persons take part....'' See GAB§ 1.42(6). The

regulation goes on to l~~t "a person authorized" to raise or spend campaign funds; "an officer of
the candidate's personal campaign committee; a campaign worker compensated by the
campaign; or a volunteer with knowledge "of campaign needs and useful expenditures." Id.
The GAB focused exclusively on the role of the catnpaign in influencing the outside group to

make an expenditure.
The Gu~delines are silent on which expenditures should be treated as in-kind
contributions. The GAB rule would obviously cover only express advocacy communications,
because that is the only speech that falls within the definition of''political purpose." The
regulation does not suggest that any speech beyond express advocacy is subject to GAB § 1.42.
And, the regulations assume there is a "clearly identified candidate." In the contest of the

21

 gubernatorial recall here, these Guidelines could not apply to Scott Walker until after April 9,
2012, when Governor Walker was considered a candidate.

It is fully appreciated that as the recipient of the subpoena, FOSW and its counsel are not
privy to the affidavit the Special Prosecutor presumably presented to this Court in support of the

subpoena. However, because the John Doe inyestigation is operating squarely in the realm of
political speech, where the First Amendment ''has its fullest and most urgent application," see

Citizens

Unite~

558 U.S. at 339-40 (citations omitted), this Court must forego tlie traditional

deference given to prosecutors, as a too-broad inquiry such as the one here may itself violate the .
First Amendment. Close examination by this Court is critical where "legislation imposes
criminal penalties in an area permeated by First Amendment intetests." Buckley, 424 U.S. at 4041. Threats of criminal liability and the heavy costs of defending against a criminal investigation
may function as the equivalent of prior restraint of free speech, giving prosecutor's a power that
the First Amendment was drawn to prohibit. Citizens United, 558 U.S. -at 335; 130 S. Ct at 895-

96.
The Special Prosecutor's sweeping subpoena suggests an overly broad interpretation of
the law, and compelling production of information involving protected speech by itself crosses
the First Amendment's free-speech line. It is the Special Prosecutor's obligation to identify for
this Court with particularity the specific communications and disbursements which may legally·
subjected to scrutiny, before this Court may, under the First Amendment, pe,:missibly order

citizens to comply with a subpoena demanding documents related to those communications. In
carefully undertaking review of such a subpoena, this Court must "give the benefit of any doubt
to protecting rather than stifling speech." Federal Election Comm 'n v. Wisconsin Right to Life,

Inc.

('~WRTL,), 551 U.S. 449,469, 127 S. Ct. 2652,2666-67 (2007).

22

''Protected speech does not

 become unprotected merely because it resembles the latter. The Con~tutional requires the
- reverse." WRTL, 551 U.S. at 476, 127 S. Ct. at 2670 (citations omitted). Thus,.the subpoena,
and the affidavit in support, must be narrowly drawn and carefully focused and supported, to
avoid infringing protected speech as a means to investigate what the Special Prosecutor may
believe is unprotected speech. ld. See also Elections Board ofState of Wisconsin v. Wisconsin

Manufacturers & Commerce, 227 Wis. 2d 650, 597 N.W.2d 721 (1999).
V.

Conclusion
The subpoena 1s constitutionally and statutorily defective and must be quashed under the

standards set forth by the Wisconsin Supreme Court in In re John Doe Proceeding, 2004 WI 65,
272 Wis. 2d 208, 235, 680 N.W.2d 792, 805 and In re Doe Proceeding Commenced by Affuiavit

Dated July 25, 2001, 2004 WI 149, 277 Wis. 2d 75, 689 N.W.2d 908. This Court should also
exercise its supervisory authority to ensure that any reissued subpoena is as narrowly tailored as
>.

the law requires.
In that regard, Governor Walker was not a "supported or opposed" recall "candidate,"

subject to restrictions on coordination of public communications regarding his candidacy until
after he legally became a candidate. By constitutional and statutory provisions, he could not
have been and was not a supported or opposed candidate before April 9, 2012. Section 11.06(7),
and§ 1.42 of the GAB's regulations, for the time period of2011-2012, did not and could not
have applied to any involvement by Governor Walk:er, or the involvement of those associated

with him, in discussions regarded communications by third party groups.
In addition, for purposes of discussing and coordinating public communications

regarding the recall election of other candidates, there was no time bar or other legal
"coordination" restriction applying to Scott Walker, his agents or other representatives.

23

 Finally, the Special Prosecutor is obligated to demonstrate to the Court those
commuriications which are for a "political p'PfPose," as defined under Wisconsin law, before a
subpoena may be issued demanding such evidence. Evidence sought by the Special Prosecutor
must relate to potential violations of law, not protected activity under the First Amendment.
Dated this 16th day of October, 2013.
Respectfully submitted,

enM. iskupic
StateBar No. 1018217
Attorney Michelle L. Jacobs
State Bar ID No. 1021706
Biskupic & Jacobs, S.C.
Attorneys for Friends of Scott Walker
Biskupic & Jacobs, S.C.
1045 W. Glen Oaks Lane, Suite 106
Mequon, WI 53092
262-241-0033
Fax: 866-700-7640

mjacobs@biskupicjacobs.com
sbiskupic@biskupiciacobs.com

24