FOX 0' EILL !SHANNON s.c.

WiLLIMv": F!TbiUUI FOX
llRUCE C. O'NEILL
(o)Uit (0rnmh~I<)IH,•:

1HOMAS 1'. 5111\NNON •
WH l i/\M H. 'iODERSTHOM
DIANE SI.OMOWilZ
AI i AN 1. YOUNG
GHECiOHY J. ill(( I
FHMKI'; .1. HUCi IES

October 25, 2013

MiCHAEl J.I11\NllAHAN
MM lliEW W. O'NEILL
SIIANNON /\.AllEN
I A\IHNA ;\ IOZWI/\K
PETEr< !. 'NiliTE
.JfiCOB /1 ivlt;Ntr,N
MiCi lli('L c-;. KOUTf~iK

The Honorable John Doe Judge
P.O. Box 2143
Milwaukee, WI 53201

Re:

OFCOIIHSEI
KtNNil H f' BAfK!.i\K

In re John Doe Proceeding
Columbia County Case No. 13-JD-11
Dane County Case No. 13-JD-9
Dodge County Case No. 13-JD-6
Iowa County Case No. 13-JD-1
Milwaukee County Case No. 12-JD-23

Dear John Doe Judge:
Along with Edward D. Greim and Todd P. Graves of Graves Garrett LLC, we represent the
Wisconsin Club for Growth, Inc. in connection with the John Doe Subpoena Duces Tecum served
upon the Club in this proceeding.
Enclosed herewith is a Motion to Quash Five Subpoenas to the Directors and Tax
Accountants ofthe Wisconsin Club for Growth, Inc.

f;-~
,/

JACOB A. MANIAN

JAM/lwg
Enclosure
Special Prosecutor Francis D. Schmitz (via mail and email)
cc:
Edward D. Greim, Esq.
Todd P. Graves, Esq.
Wisconsin Club for Growth

fOX, !J'NtiLl & SHAIIIIUII, S. C.

1!22 H WATER ST, SUITE fiUD , MilWAUKEE, WI

532D2 - ~9 7 S

: T 414 ?. 73 3939

t

mm

39H ! FOSLAW.DUM

 STATE OF WISCONSIN

IN THE MATIER OF A JOHN
DOE PROCEEDING

BEFORE THE .JOHN DOE JUDGE

COLUMBIA COUNTY CASE NO.
DANE COUNTY CASE NO.
DODGE COUNTY CASE NO.
lOW A COUNTY CASE NO.
MILWAUKEE COUNTY CASE NO.

13JDOOOll
13JD000009
13JD000006
13JDOOOOOI
13JD000023

MOTION TO QUASH FIVE SUBPOENAS DIRECTED TO THE DIRECTORS
AND TAX ACCOUNTANT OF THE WISCONSIN CLUB FOR GROWTH, INC.
Eric O'Keefe, Eleanore Hawley, and Charles Talbot, three directors of the
Wisconsin Club for Growth, Inc. (the "Club"), whose attorney received four subpoenas
demanding that each director and the Club itself produce documents of the Club,
returnable October 29, 2013, hereby file on their own behalf and on behalf of the Club
the following Motion to Quash and incorporated suggestions in support. This Motion
also seeks to quash a subpoena to Club accountant Jed Sanborn which exclusively seeks
the Club's confidential financial and tax information.

Introduction
This Court must quash the Special Prosecutor's efforts to compel the Wisconsin
Club for Growth to disclose its confidential supporters, political communications, and
political strategies. This is so for two reasons. First, the govemmenfs likely theory of
criminal liability is invalid.

It would extend campaign finance laws to sanction

communications and conduct well beyond the outer bounds fixed by Wisconsin law and
the United States Constitution. Second, the subpoenas are unconstitutionally overbroad.
Even if the government could articulate the elements of a valid theory to capture the
Club's 2011 and 2012 conduct, its document demands would have to substantially relate
to those elements.

Yet here, its demands range far beyond any conceivable theory,

sweeping into almost all of the Club's 2011-2013 political activity, and even beyond

 Wisconsin.

Indeed, the government would pry into almost all of the Club's internal

communications and relationships with key supporters as far back as 2009, two years
before the recall elections at issue.
As discussed below, now is the time for this Court to assert control over this
investigation by examining (1) the government's underlying theory and (2) the legality of
its apparent plan of investigation. Both the theory and the apparent plan for investigating
it raise grave constitutional issues. They cannot be saved for another day.

(a)

The Government's Theory of Criminal Liability Is Invalid
First, the government's theory, if valid, would severely punish conduct that, at

best, is at the outermost frontier of what the First Amendment permits the state to
regulate-let alone criminalize.

Specifically, the government appears to believe that

some level of coordination between candidate campaigns and outside issue advocacy
groups in 2011 and 2012 could support a felony conviction under Wisconsin law.
As a starting point, coordination is itself core political speech and association
protected under the First Amendment and Wisconsin Constitution.

Nonetheless, the

government's theory assun1es that a fine constitutional line cleaves through the very heart
of this protected activity, dividing a zone of protected speech from an adjacent zone of
criminal conduct. If the manner and degree of political association between candidate
campaigns and the Club take on a certain cast, so the theory goes, then wholly
unregulated political speech morphs into an impermissible "in-kind contribution" to
campaign committees. In other words, if a backward look at the 2011 and 2012 recall
elections makes a factfinder feel that the Club's political speech dovetailed in some
vaguely impermissible way with the candidates' speech, then groups like the Club have

2

 strayed into a constitutional electric fence. But even worse than the shock-a Wisconsin
felony conviction-is the muffling and chilling of future political association and speech.
Whether the First Amendment and due process even permit such an inquiry
presents a substantial constitutional question. The line of demarcation, "coordination,"
must be clear before any prosecution-not haltingly sketched, erased, and redrawn to
achieve a predetermined result based on a criminal inquiry's developing facts.
Additionally, the line itself-whatever it turns out to be-must satisfy rigorous First
Amendment scrutiny. As discussed below, however, this Court can avoid reaching this
constitutional issue. The government's theory fails for the simple reason that it does not
even state a crime under Wisconsin law: it extends to issue advertisements that are not
subject to Wisconsin's campaign finance laws.
(b) The Government's Investigation Is Constitutionally Overbroad

Second, even if the government's theory were not legally infirm, its allencompassing probe of one half of Wisconsin's sharply divided political universe goes
far beyond what is necessary. Investigations of compliance with campaign finance laws,
which govern political speech and association, are fundamentally different from
investigations of illicit conduct such as narcotics or financial crimes.

Where the

investigation seeks to expose confidential lists of political supporters, or communications
about beliefs and political strategy, in an environment where (as shown below) politically
motivated harassment and recriminations have occurred, attempts to compel disclosure
must survive First Amendment scrutiny. The specific information demanded must be
substantially related to the elements of the crime being investigated. As discussed below,
the government's demands for several additional years of sensitive communications and

3

 donor lists are not substantially related to any of the elements the government would need
to prove-even if its theory were legally valid.
Because of the chill this investigation is already casting over protected political
speech and association, this Court cannot wait to test the govenunent' s theories or
methods. It should act now, and the first step should be to quash the five Club subpoenas.
I.

The First and Fourth Amendments Limit the Scope of Criminal
Subpoenas that Seek to Compel Disclosure of Political Supporters,
Strategies, and Communications
(a) The Fourth Amendment Reasonableness Standard Applies

Both the First and Fourth Amendments protect the Club and apply to the
subpoenas in this case. The Fourth Amendment provides as follows:
The right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated,
and no Warrants shall issue, but upon probable cause, supported by Oath
or affirmation, and particularly describing the place to be searched, and
the persons or things to be seized.
U.S. Canst. Amend. IV. "The central concern underlying the Fourth Amendment [is] the
concern about giving police officers unbridled discretion to rummage at will among a
person's private effects." Arizona v. Ganl, 556 U.S. 332, 345 (2009). With respect to
John Doe search warrants, this means that "any document requested, in order to be
relevant to the inquiry, must focus on the factual assertions made to the judge at the
commencement of the proceeding." In re Doe Proceeding Commenced by Affidavit
Dated July 25, 2001, 2004 WI 149, 277 Wis.2d 75, 689 N.W.2d 908 (modifying

paragraphs 53-55 of earlier opinion on denial of reconsideration at 2004 WI 65, 272
Wis.2d 208, 680 N.W.2d 792).

4

 With respect to computer data, a keyword search may be helpful in describing the
docwnents required, but even this, standing alone, is not enough. In re Doe Proceeding,
2004 WI 65

at~

51, n. 18, 272 Wis.2d at 240 n. 18, 680 N.W.2d at 807, n. 18 (while a

"keyword search may have been helpful, the requirements set out... below are also
necessary to a valid subpoena"). These additional requirements are fourfold. A valid
subpoena:
(1) limits the requested data to the subject matter described in the John
Doe petition, Reimann, 214 Wis.2d at 622[, 571 N. W.2d 385]; (2) shows
that the data requested is relevant to the subject matter of the John Doe
proceeding, Washington, 83 Wis.2d at 843[, 266 N.W.2d 597]; (3)
specifies the data requested with reasonable particularity, Walling, 327
U.S. at 209[, 66 S.Ct. 494]; Hale [v. Henkel], 201 U.S. [43] at 77[, 26
S.Ct. 370, 50 L.Ed. 652]; and (4) covers a reasonable period of time ...
In re Doe Proceeding, 2004 WI 149

at~

55, 277 Wis. 2d at 78, 689 N.W.2d at 909-10.

Ultimately, "it is the district attorney's burden to provide support to the John Doe judge
for a constitutionally sufficient subpoena, as he is the party who commenced the
proceeding and sought the subpoena." In re Doe Proceeding, 2004 WI 65 at

~

52, 272

Wis.2d at 240, 680 N.W.2d at 807.

(b)

Tbe First Amendment Requires Exacting Scrutiny oftbe Subpoenas
Although the Fourth Amendment provides an important limitation on John Doe

subpoenas, a standard that is even more stringent applies here.

Because the Club's

documents and data reflect core political speech and political association, they are also
subject to the First Amendment privilege.

"Disclosures of political affiliations and

activities that have a •cteterrent effect on the exercise of First Amendment rights'
are ... subject to ... exacting scrutiny." Perry v. Schwarzenegger, 591 F.3d 1147, 1161 (9th
Cir. 2009), cert. dismissed, Hollingsworth v. Perry, 559 U.S. 1118 (2010) (citing Buckley

v. Valeo, 424 U.S. 1, 64-65 (1976)).

Courts apply such exacting scrutiny because

5

 compelled disclosure strikes at the core of the First Amendment. "Effective advocacy of
both public and private points of view, particularly controversial ones, is undeniably
enhanced by group association." NAACP v. Alabama, 357 U.S. 449, 460 (1958). "We
have little difficulty concluding that disclosure of internal campaign communications can
have such an effect on the exercise of protected activities." Perry, 591 F.3d at 1162. See
also Katzman v. State Ethics Board, 228 Wis. 2d 282, 296, 596 N.W.2d 861 (Ct. App.

1999) (affirming order enjoining Ethics Board investigation into lobbyist spouse's
political contribution because "'compelled disclosure, in itself, can seriously infringe on
privacy of association and belief guaranteed by the First Amendment."') (quoting
NAACP v. Alabama, 357 U.S. at 460-61).

These principles have a direct application in litigation: "A party who objects to a
discovery request as an infringement of the party's First Amendment rights is in essence
asserting a First Amendment privilege." Perry, 591 F.3d at 1160 (emphasis in original).
Applying the First Amendment privilege, the Perry court held that given the burden on
the campaign group's speech, "the party seeking the discovery must show that the
infonnation sought is highly relevant to the claims or defenses in the litigation." Id. at
1161. The information must also have been "carefully tailored to avoid unnecessary
interference with protected activities, and the information must be otherwise
unavailable." !d. Ultimately, the Ninth Circuit granted a writ of mandamus requiring the
district court to enter a protective order prohibiting disclosure of communications
concerning the formulation of campaign strategy and messages by a group that
successfully passed an amendment prohibiting gay marriage. !d.

6

 In criminal litigation, the standard is no less demanding.

Indeed, the First

Amendment privilege provides a level of protection much greater than that provided by
the Fourth Amendment, even where documents are seized from a third party that may not
itself hold the First Amendment privilege. In re Grand Jury Proceeding, 842 F.2d 1229
(11th Cir. 1988).
Here, the Club has met its initial burden of showing that it has an objectively
reasonable fear of harassment. See In re Grand Jury Proceeding, 842 F.2d at 1235-36.
In other cases, this has involved a showing that the group engages in political speech, and
that previous disclosure of supporters' identities has led to private or official harassment.

!d. (collecting cases).

A lesser showing is required where, as here, "a goverrunent

investigation into possible violations of law has already focused on a particular group or
groups,'' based on the "rationale that the government investigation itself may indicate the
possibility of harassment." !d. at 1236. The Club's evidence shows that it engages in
political speech, and that when its political allies were recently identified, they were
subjected to boycotts, harassment, and death threats. Further, as discussed below, some
opponents of the Club have now identified it and one of its directors, Eric O'Keefe, and
have suggested that they are part of a vast conspiracy to coopt the public interest and
violate election laws.
The Affidavit of Eric O'Keefe (Ex. A hereto) establishes that the Club has
engaged in core political speech and association in Wisconsin since at least 2009. See
Ex. A,

~~

3-4. The Club's political speech and association arose from its attempts to

spread its core mission and beliefs: a pro-liberty, pro-fiscal restraint agenda. !d.

at~~

4-7.

It worked with existing supporters and recruited supporters to help it back Act 10, a

7

 measure relating to collective bargaining for public employee unions. !d. at

mf 7-8.

The

Club paid for advertisements supporting Act 10 and other important legislation that the
Club believed advanced its agenda. ld.

at~~

11-12.

Yet even as the legislative debate unfolded, efforts began to recall legislators who
had voted for or against Act 10, and ultimately the recall efforts expanded to Governor
Scott Walker. Jd.

at~~

8-11. The Club continued to pay for advertisements supporting

Act 10 and other important legislation, but again, none of the Club's advertisements
expressly advocated for or against a recall election candidate. Id.

at~

12.

The legislative debate that spilled over into recall elections generated intense
reactions on all sides, including, unfortunately, harassment, boycotts, and death threats
against individuals holding controversial views or views in line with those of the Club.
Ex.

A,~~

14-16. These included numerous attempts to boycott and threaten people who

were identified as supporters of Governor Walker or his legislative agenda. !d.

at~

17(a)

through U). Many of the threatening websites are still active and continue to spew venom
at individuals and entities who are viewed as supporting Governor Walker and his
legislative agenda-a set of beliefs that the Club also supports. !d.
Further, legislators and Governor Walker received numerous death threats; private
citizens who seemed to support Governor Walker's legislative reforms were subjected to
threats of personal harm. Ex. A,

~

18 (a) through (f). Opponents of the Club and its

position on Wisconsin legislative issues have already targeted presumed Club supporters
and the Club's director, Eric O'Keefe, accusing them in an online "expose" of being part
of a vast conspiracy that should be investigated for violating campaign finance laws. Id.,
~

19.

8

 Based on all of these actual events and threats, Club supporters (whose identities
cannot be disclosed by the IRS under the Internal Revenue Code) have asked for
assurance that their identities will not be disclosed, and the Club has provided such
assurances.

Ex. A,

~~

20-23.

Even now, Club supporters remain concerned about

disclosure of their identities and internal Club political communications and strategy;
websites used to target supporters of Governor Walker's legislative agenda are still
active. Id.

at~~

25-26. Further, the John Doe investigation itself has chilled and, in some

cases, frozen, the Club's intimate associations with its political and ideological associates
and allies. Id.

at~

27. Club documents that have already been seized relate to the Club's

previous and ongoing political associations and strategies not only in Wisconsin, but all
over the country. Id.

at~~

28-29. Because past John Doe proceedings have been used to

spread leaks and rumors in political attacks on the proceedings' presumed targets, the
Club and its supporters are concerned that a similar pattern of conduct will emerge here.

Id.

at~~

31-33. For that reason, the Club has already had to halt political plans that were

underway in Wisconsin and other states. Id.

at~

30.

Thus, the subpoenas have chilled the Club's planned political speech and
association in at least two respects. First, the demonstrated pattern of harassment and
recriminations against individuals who espouse the Club's beliefs supports an objectively
reasonable belief that it will continue if the Club is forced to disclose sensitive internal
political documents, including its records of board meetings, donors, and supporters. Ex.
A at

~

34. Second, the very fact that the Club and its political associates have been

targeted with the instant criminal investigation, and that some of their most sensitive and
valuable political documents-which have nothing to do with recalls or with

9

 Wisconsin-have already been seized, has caused an additional chilling effect on the
Club's currently-planned political speech and association in Wisconsin and elsewhere.

!d.

at~

35.
For all of these reasons, the Club has made its threshold showing and the First

Amendment privilege applies.

Accordingly, assuming for the moment that the

govenunent's theory of criminal liability was legally recognized under Wisconsin law
and consistent with the United States Constitution, it "must show that the information
sought is highly relevant to the claims or defenses in the litigation." Peny, 591 F.3d at
1160.

The government must also show that its subpoena demands were "carefully

tailored to avoid unnecessary interference with protected activities, and the information
must be otherwise unavailable." !d. at 1161. As discussed in the next section, the
govenunent cannot make this showing as a matter of law.

II.

The Subpoenas Are Invalid Under the First and Fourth Amendments

The subpoenas are invalid for two distinct reasons. First, they cannot be "highly
relevant" to any compelling state interest (i.e., any act that has constitutionally been made
subject to criminal penalties under Wisconsin law), because Wisconsin has chosen not to
regulate the type of communications the Club decided to issue. Accordingly, regardless
of the degree of communication or coordination between the Club and any candidate
campaign, no campaign had to report the Club's advertisements as a contribution. This
means that no report could have been false, and certainly not criminally false.
Second, even if the Club had paid for advertisements that could be regulated
under Wisconsin law, only certain types of communications and conduct can constitute
the kind of "coordination" that can-under the regulations of Wisconsin's Government

10

 Accountability Board, and consistent with the First Amendment-convert free,
independent speech into a "contribution" that must be reported. Rather than focusing on
this specific conduct, the Special Prosecutor's subpoenas plot a free-ranging exploration
of all of the Club's activities relating to the 2011 and 2012 recall elections, and all of its
confidential communications, strategy, and supporters' identities going back to 2009.
Accordingly, the subpoenas are fatally overbroad.
a. The Wisconsin Legislature Chose to Limit its Campaign Regulation to
Communications that Constitute Express Advocacy, and Chose Not to
Reach the Club's Issue Advocacy
The government's coordination theory cannot be sustained because, regardless of
the quality and extent of communications between the Club and any candidate campaign,
all advertisements paid for by the Club fall outside of the ambit of the Wisconsin
campaign finance law. None ofthe advertisements constituted "express advocacy." See
O'Keefe Aff., Ex.

A,~

12. Because Wisconsin only recognizes "express advocacy" as

the sort of communication that has a "political purpose" and can therefore qualify as a
reportable "disbursement" or "contribution," issue advertisements are not reportable
under Wisconsin law.
(1) Only Disbursements or Contributions Are Reportable
Election-related spending must qualify as a "disbursement" or "contribution"
before it becomes subject to reporting obligations, limits, or (in some cases) outright
bans.

No "disbursement" need be reported unless it (1) is a "contribution" or (2)

expressly advocates the election or defeat of a clearly identified candidate. §11.06(2),
Stats.

The second exception does not apply because no Club communication expressly

advocated the election or defeat of a clearly identified candidate. See O'Keefe Affidavit

11

 at

~

12.

Assuming for a moment that the Club's communications were paid for by

"disbursements," 1 then, they could only have been reportable if they were otherwise
defined as "contributions."

(2) As a Matter of Law, Issue Ads Are Not "Made for Political
Purposes," and Therefore, Spending on Issue Ads Is Not a
"Contribution"
The Club's communications could not have been contributions because, under
Wisconsin law, they were not "made for political purposes."

Wisconsin defines

"contributions" as follows:
(6)(a) Except as provided in par. (b), "contribution" means any of the
following:
1. A gift, subscription, loan, advance, or deposit of money or anything of
value, except a loan of money by a commercial lending institution made
by the institution in accordance with applicable laws and regulations in the
ordinary course of business, made for political purposes. In this
subdivision "anything of value" means a thing of merchantable value.
§11.01(6)(a), Stats. (emphasis added).
Even adopting (arguendo) the government's likely theory that any person who
pays for an advertisement that they know will benefit a candidate has given that candidate
a "gift," Wisconsin's legislature supplemented the definition of contribution with an
important additional requirement: "made for political purposes."
Parties wishing to avoid criminal penalties of the kind the government seeks to
impose here must rely on the legislature's definition of the limiting phrase, "for political
purposes." The law provides as follows:

1

The same feature that disqualifies the Club's communications as "contributions" would
also disqualify them as "disbursements." Like a "contribution," a "disbursement" must
be made for political purposes. § 11 .01 (7)(a), Stats. As discussed in subsection (2) of this
brief, issue ads are not made for political purposes.

12

 (16) An act is for "political purposes" when it is done for the purpose of
influencing the election or nomination for election of any individual to
state or local office, for the purpose of influencing the recall from or
retention in office of an individual holding a state or local office, for the
purpose of payment of expenses incurred as a result of a recount at an
election, or for the purpose of influencing a particular vote at a
referendum. In the case of a candidate, or a committee or group which is
organized primarily for the purpose of influencing the election or
nomination for election of any individual to state or local office, for the
purpose of influencing the recall from or retention in office of an
individual holding a state or local office, or for the purpose of influencing
a particular vote at a referendum, all administrative and overhead expenses
for the maintenance of an office or staff which are used principally for any
such purpose are deemed to be for a political purpose.
(a) Acts which are for "political purposes" include but are not limited
to:
1. The making of a communication which expressly advocates the
election, defeat, recall or retention of a clearly identified candidate or
a particular vote at a referendum.
2. The conduct of or attempting to influence an endorsement or
nomination to be made at a convention of political party members or
supporters concerning, in whole or in part, any campaign for state or local
office.
§11.01(16), Stats. (emphasis added). The only specific act referenced in the statute is
communication using express advocacy--the type of advertisement that is not at issue
here. See§ 11.01(6)(a)(l), Stats. 2
The government may argue that notwithstanding Wisconsin's statutes, the
Government Accountability Board ("GAB") promulgated in 2010 a regulation that
defined "political purpose" to include a new category of issue advocacy: advertisements
2

This is consistent with Wisconsin's laws regulating disbursements by groups
(potentially, like the Club) who pay for their own communications and advertisements
surrounding a candidate election. Wisconsin requires such groups to file an "oath" that
they do not "act in cooperation or consultation with" a candidate, a candidate committee,
or its agents. See §11.06(7), Stats. Notably, this requirement extends only to groups who
(unlike the Club) "advocate the election or defeat of any clearly identified candidate or
candidates in any election ... " !d. It does not extend to issue advocacy groups. Thus,
Wisconsin has extended its primary reporting requirements for independent expenditures
only to groups engaging in the equivalent of express advocacy-not to groups engaging
in issue advocacy or the species of issue advocacy recognized at the federal level as
electioneering communications.

13

 that reference candidates in a certain way 60 days before a general election, but do not
call for voters to take a specific action in an election. Wis. Adm. Code GAB 1.28(3)(b).
If it turns out that any Club advertisement falls into this narrow category, those ads
cannot now form the basis for a criminal prosecution.
That is because shortly after the GAB promulgated the new regulation to expand
the definition of "political purposes," the Club challenged it in federal court based upon
the very danger it is now facing-that it could be held civilly or criminally liable for a
rule that it believed was unconstitutional and unauthorized by statute. The Club argued
that the GAB's action was an unconstitutional enlargement of Wisconsin's campaign
finance laws beyond the scope of conduct--express advocacy-regulated by the
legislature. See Wisconsin Club for Growth v. Myse, 2010 WL 4024932 *2 (W.D. Wis.
201 0) (noting that GAB and the Club had prepared a stipulation "permanently enjoining
enforcement of the second sentence of GAB l.28(3)(b)-the new language plaintiffs
allege is invalid under state law and violates their First Amendment rights").
The district court stayed the action based in part upon GAB's representation that
it would not enforce its attempted regulatory expansion of "political purpose" beyond
express advocacy. ld. at *8 ("Moreover, GAB seems to be backing away altogether from
enforcement of the language of newly·amended GAB 1.28 at issue."). And recently in a
companion case in the Seventh Circuit Court of Appeals, counsel for Wisconsin's GAB
stated that "GAB intends to honor the stipulation [in the Club for Growth case]" and
"GAB is committed to not enforcing the second sentence of GAB 1.28(3)(b) because of a
stipulation in Club for Growth," even though it desired to defend the constitutionality of a
part of that sentence. See Ex. B, attached hereto, pp. 62-63 .

14

 Wherever this nuanced maneuvering leaves GAB 1.28(3)(b), it certainly cannot
be validly enforced based on GAB's signed stipulation with the Club and numerous
representations in federal court that it would not enforce the rule. As a result, no person
who pays for the narrow category of advertisements that GAB initially tried to reach with
GAB 1.28(3)(b) has made a "disbursement" or "contribution" under Wisconsin law.
In conclusion, then, if the Club made no "disbursement" or "contribution," then
the money it spent to spread its beliefs among Wisconsin citizens cannot be reportable by
anyone-not by the Club, and not by any candidate committee. Wisconsin's legislature
has not provided any special exception for communications that benefited a candidate
campaign, that the Club believed would benefit a candidate campaign, or that a candidate
campaign wanted or believed would benefit it. The desire of the GAB or of a prosecutor
to reach such conduct as a matter of policy cannot support a sweeping John Doe
investigation. On this ground alone, the five subpoenas should be quashed.
(3) There Is No Novel End-Run Around the Coordination Laws

As discussed above, the Wisconsin legislature has limited the reach of its
campaign finance laws to acts with a "political purpose," a decision which has its genesis
in the fact that the First Amendment limits not only the type speech that campaign
finance laws can reach, but also the type of coordination which can constitute a
contribution. Chafing under the First Amendment's restraints, the government may urge
a novel theory that avoids the definition of "political purpose" and thereby reaches into
every possible form of political speech.
Specifically, the Club believes the government may now claim that every group
that acts "with the cooperation of or upon consultation with a candidate or agent or

15

 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," should be
"deemed a subcommittee of the candidate's personal campaign committee." §11.10(4),
Stats. Taken without reference to any other part of the campaign finance law, this could
convert almost every independent corporation, union, or church that could be deemed to
have at some point acted "in concert with" a candidate, into a subcommittee of the
candidate's principal committee. Since few Wisconsin campaigns have ever filed such a
"subcommittee" report, felony convictions could be harvested as low-hanging fruit,
virtually at will and limited only by the peculiar political interest of prosecutors.
However, this theory is unavailable to the government. Section 11.1 0(4) does not,
in fact, apply to any "group" who acts "in concert with" a can1paign. Instead, by its plain
language, it applies only to "[a]ny committee which is organized or acts with the
cooperation of or upon consultation with a candidate ... " Id. And to be a "committee," a
an entity or person must first make or accept "contributions" or "disbursements:"
(4) "Committee" or "political committee" means any person other than an
individual and any combination of 2 or more persons, permanent or
temporary, which makes or accepts contributions or makes
disbursements, whether or not engaged in activities which are exclusively
political, except that a "committee" does not include a political "group"
under this chapter.
Wis. Stat. §11.01(4), Stats. (emphasis added). As shown in sections a(l) and (2) above,
money that is spent or given is only a "contribution" or "disbursement" if it is for
"political purposes," and again, only express advocacy is made for "political purposes."
Accordingly, Section 11.10(4) is not a recently discovered trap door in the superstructure
of Wisconsin's campaign finance law; it simply describes the legal effect of coordination
in the peculiar circumstance where the entity coordinating with a candidate's committee

16

 has itself already qualified as a "committee" under Wisconsin law. It does not apply to
the Club, a non-committee.

Try as it might, the government cannot escape the

legislature's decision to limit the scope of the campaign finance law to express advocacy.

b. Even if Wisconsin Regulated the Club's Issue Advocacy, the
Subpoenas Demand Documents Far in Excess of What Would Be
Necessary to Establish Coordination Between a Candidate Campaign
and an Organization Paying for Issue Advertisements
The Wisconsin legislature provided no test for determining when a group's
disbursement for a political communication could be considered a "gift" or contribution
to a candidate, rather than an independent expense of the group to express its views about
the candidate. Nor did the legislature provide that a group's mistake in reporting its
expenses could qualify as a criminal offense.

Instead, it mandated that groups who

engaged in express advocacy must provide a registration statement or oath that they had
not made expenses in "cooperation or consultation" with a candidate, candidate
committee, or candidate's agent. §11.06(7), Stats.
Despite the lack of statutory guidance, the GAB provided a four-part test for
determining when an outside group's express advocacy communication could be deemed
to be in "cooperation or consultation" with a candidate committee. That test mandates
specific communications between the outside group and certain specified individuals
associated with the candidate:
(6) Guidelines.
(a) Any expenditure made on behalf of a candidate will be presumed to be
made in cooperation or consultation with any candidate or agent or
authorized committee of a candidate who is supported or opposed, and in
concert with, or at the request or suggestion of, any candidate or any agent
or authorized committee of a candidate who is supported or opposed and
treated as an in-kind contribution if:
1. It is made as a result of a decision in which any of the following persons
take part:

17

 a. A person who is authorized to raise funds for, to spend the campaign
funds of or to incur obligations for the candidate's personal campaign
committee;
b. An officer of the candidate's personal campaign committee;
c. A campaign worker who is reimbursed for expenses or compensated for
work by the candidate's personal campaign committee;
d. A volunteer who is operating in a position within a campaign
organization that would mak~ the person aware of campaign needs and
useful expenditures; or
2. It is made to finance the distribution of any campaign materials
prepared by the candidate's personal campaign committee or agents;
Wis. Adm. Code GAB 1.42(6).
Even this test is vague; it explains who must "take part" in a decision, but does
not explain what level or degree of discussion will trigger a finding, or what topics the
two individuals must discuss. Because the test defines the line between fully protected
speech and a potentially illegal contribution, specificity and notice is required. "First
Amendment clarity demands a definition of "coordination" that provides the clearest
possible guidance to candidates and constituents ... " Federal Election Commission v.
Christian Coalition, 52 F.Supp.2d 45, 91 (D. D.C. 1999). And as the Wisconsin Supreme
Court has instructed:
"Because we assume that [persons are] free to steer between lawful and
unlawful conduct, we insist that laws give the person of ordinary
intelligence a reasonable opportunity to know what is prohibited, so that
he [or she] may act accordingly." ... Such notice is a basic requirement of
due process. Grayned, 408 U.S. at 108, 92 S.Ct. 2294. When First
Amendment interests are implicated by laws which may result in criminal
penalties, imprecise standards "may not only 'trap the innocent by not
providing fair warning' or foster 'arbitrary and discriminatory application'
but also operate to inhibit protected expression by inducing 'citizens to
steer far wider of the unlawful zone ... than if the boundaries of the
forbidden areas were clearly marked.' " ... "Because First Amendment
freedoms need breathing space to survive, government may regulate in the
area only with narrow specificity."
Elections Bd. ofState of Wis. v. Wisconsin Mfrs. & Commerce, 227 Wis. 2d 650, 676-77,
597 N.W.2d 721, 734, cert. denied, 528 U.S. 969 (1999).

18

 Even if it is crystal-clear, a First Amendment-compliant definition must also
balance the government interest in avoiding quid pro quo corruption with fundamental
rights of political speech and association. !d. At a minimum, this requires a narrowlytailored definition that "focus[es] on those expenditures of the type that would be made to
circumvent the contribution limitations." Id. It also requires that it be limited to those
types of expenditures that provide the candidate "with something of value that she wants
or needs;'' which necessarily "depends on the circumstances." Id. The definition also
should be limited to sources that the candidate will feel "obliged" to reward by taking
"official action that is not in the public interest." Id.
Considering all of these factors, Christian Coalition developed the following
substantive test for a "coordination" standard that would comply with the First
Amendment:
In the absence of a request or suggestion from the campaign, an expressive
expenditure becomes "coordinated;" where the candidate or her agents can
exercise control over, or where there has been substantial discussion or
negotiation between the campaign and the spender over, a
communication's: (1) contents; (2) timing; (3) location, mode, or intended
audience (e.g., choice between newspaper or radio advertisement); or (4)
"volume" (e.g., number of copies of printed materials or frequency of
media spots). Substantial discussion or negotiation is such that the
candidate and spender emerge as partners or joint venturers in the
expressive expenditure, but the candidate and spender need not be equal
partners.
Christian Coalition, 52 F.Supp.2d at 92.
Reading Wisconsin's regulatory standard in conjunction with the First
Amendment limitations on any state regulation, it follows that any test would require as
follows:
(1) communications between, on the one hand, a candidate, a candidate's
fundraiser, a campaign officer, or worker or volunteer who is in a position to

19

 make decisions for the campaign, and on the other hand, the person who
creates the ad;
(2) that the communication was about (a) content; (b) timing; (c) location, mode,
or intended audience; or (d) volume; and was a "substantial" discussion or
negotiation such that the campaign and independent group emerge as joint
venturers or partners in the expressive expenditure.
Even if the Club had engaged in express advocacy and was therefore subject to a
coordination test, the subpoenas here 3 range far beyond the elements of the test. See
Subpoenas, Ex. C hereto. They seek donor identities and internal Club communications
for two full years prior to any recall election-when the recall subjects may not have
even been elected to office in the first place. Additionally, they seek Club
communications with a whole range of persons and entities who are not candidates or
candidate campaigns.

These communications may establish "coordination" among

groups on one side of the legislative and political spectrum, but they have nothing to do
with coordination between issue groups and candidate campaigns.

Further, the

subpoenas seek all Club communications with trusted political associates and vendors,
regardless of whether they discuss the content, timing, or mode of distribution of
advertisements paid for by the Club. Finally, the sweeping subpoena of the Club's tax
accountant will unnecessarily expose sensitive tax information, including the identities of
3

The subpoenas bear signs of being one-size-fits-all, and it seems likely that at least a
few dozen individuals and entities received the exact same subpoena, regardless of their
role in the political advertisements that are at the core of the governments' theory. For
example, footnote 1 of the Club subpoenas instructs recipients to ignore references to
themselves in a 29-person laundry list of people whose communications the recipients
have to produce. See Ex. C. Presumably, many or most people in the list received the
exact same subpoena, and the form subpoena was not individualized even to fix
commands for recipients to produce communications with themselves.
20

 contributors and beneficiaries who have nothing to do with elections, recalls, or
Wisconsin.
In short, the subpoenas seem directed to uncover the entirety of the confidential
communications that occurred on one side of Wisconsin's intensely-charged public
policy and political debates over a two-year period-not specific communications that
are "highly relevant" to proving that covered advertisements were actually coordinated
within the meaning of the law. If this John Doe investigation is intended to uncover
evidence of a specific crime, it should be targeted to the elements of that crime rather
than to the entirety of the Club's First Amendment-protected political communications
and all of the Club's financial and tax information.
Conclusion

The five Club subpoenas must be quashed. First, they attempt to investigate a
crime-failure to properly report "coordination" using non-express advocacy-which
does not exist under Wisconsin law.

Second, even if such a crime did exist, the

subpoenas are overbroad under both the Fourth and First Amendments to the United
States Constitution. John Doe investigations are not vehicles for roving explorations of
political opponents' private, privileged political speech and association. Now, before
more sensitive documents are seized or demanded, and before even more core political
speech and association is unlawfully chilled, this Court must closely examine the
viability of the government's legal theory and investigative plan. The Club respectfully
requests that this Court promptly:
(1)

schedule a hearing and oral argument on this motion on or after the
subpoena return date of October 29, 2013; and

21

 (2)

quash the four subpoenas directed to the Club and its directors, and the
one subpoena directed to the Clubls accountant, Jed Sanborn.

Dated this 25th day of October, 2013.

/Z'~;;

MA '11-IEW W. O'NEILL
!".
7
State BarNo. 1019269
~o~c
;.........--FOX, O'NEILL & SHA ON, S.C.
622 North Water Street, Suite 500
Milwaukee, WI 53202
(414) 273-3939
mwoneill@foslaw.com

GRAVESGARRETT,LLC
Todd P. Graves, Mo. Bar 41319
Edward D. Greim, Mo. Bar 54034
Kathleen A. Fisher Mo. Bar 57737
1100 Main Street, Suite 2700
Kansas City, Missouri 64105
Tel: 816-256-3181
Fax: 816-817-0863
tgraves@gravesgarrett.com
edgreim@gravesgarrett. com
kfi sher@.gra ves garrett. com
(Pro hac vice admission forthcoming)
Counsel for Wisconsin Club
for Growth, Inc.

22