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7th Cir. Gets Fed. Court Out of Wis. Campaign Finance Case

By Mark Wilson, Esq. on September 25, 2014 5:14 PM

As you've no doubt read before, Wisconsin state officials are investigating Governor Scott Walker's office for violations of campaign finance laws. The allegations -- which came to light through the Seventh Circuit's inadvertent disclosure of documents -- were that the Wisconsin Club for Growth, a political advocacy organization, had illegally coordinated with Governor Scott Walker's anti-recall efforts.

At the same time a criminal investigation against "John Doe" targets was ongoing, Wisconsin's Government Accountability Board launched its own investigation and subpoenaed documents from the Club for Growth.

The Anti-Injunction Act

The subpoena, alleged Eric O'Keefe, the Club for Growth's manager, included in its broad scope several years of financial records and records of contributors that he believes are constitutionally protected. O'Keefe maintains the investigation is punishment for the Club for Growth's support of controversial legislation.

Generally, a federal court can't grant an injunction to stay state court proceedings. O'Keefe, however, bypassed state court and went straight to federal court to get an injunction stopping the state investigation. The district court granted such an injunction on First Amendment grounds, but the Seventh Circuit put the kibosh on that.

O'Keefe won at the state trial court level trial: The court granted his motion to quash. Francis Schmitz, one of the state special prosecutors, went to the Wisconsin court of appeals for a supervisory writ, but O'Keefe went straight to the Wisconsin Supreme Court, then filed his federal complaint before the court had a chance to do anything.

For this reason, said the Seventh Circuit, O'Keefe won't suffer an irreparable injury: He's already got the subpoena quashed, and "uncertainty" isn't reason enough to have the federal court step in when there are other appellate avenues available.

Moreover, the case never actually presented a constitutional issue, meaning the district court's opinion was only advisory. The Wisconsin trial court concluded that the subpoena should be quashed because Schmitz didn't have any evidence that the Club for Growth was violating state law -- not because of the First Amendment.

Qualified Immunity

O'Keefe also sought damages from defendants -- which included the Wisconsin trial court judge -- but the Seventh Circuit said no to that. While the district court denied qualified immunity because the First Amendment was "clearly established law," the Seventh Circuit said that the constitutionality of coordinating with a political candidate "has not been established 'beyond debate.'"

First Amendment Priorities

Finally, the Seventh Circuit addressed an issue brought by appellants the Reporters Committee for Freedom of the Press, which claimed the public has a right to the documents the federal court considered. That's not necessarily true, said the Seventh Circuit. The documents are still part of the state John Doe investigation, the equivalent of a grand jury investigation, where the state is entitled to keep documents confidential. "Wisconsin, not the federal judiciary, should determine whether, and to what extent, documents gathered in a John Doe proceeding are disclosed to the public."

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