WI Federal Court Halts John Doe Investigation in Campaign-Finance Probe

Federal case law summary by Attorney Richard Clem: campaign finance, First Amendment.

Eric O'Keefe, et al., v. Francis Schmitz, et al. Campaign finance, First Amendment.

In this case, the plaintiffs, who had engaged in "issue advocacy" sought an injunction against state prosecutors who were investigating alleged campaign finance violations.

The heart of this well-publicized Wisconsin case is the validity of certain provisions of Chapter 11 of the Wisconsin Statutes, which regulates campaign expenditures, including all disbursements made "for the purpose of influencing" an election. The expenditures in this case were undisputedly "issue advocacy." But the defendants, county prosecuting attorneys, argued that because the expenditures were allegedly coordinated with Governor Walker's campaign, that these expenditures were subject to the campaign finance requirements of Chapter 11.

In issuing the preliminary injunction, the court essentially held that coordination with a campaign is permissible. The court stated:

Defendants' attempt to construe the term "political purposes" to reach issue advocacy would mean transforming issue advocacy into express advocacy by interpretative legerdemain and not by any analysis as to why it would rise to the level of quid pro quo corruption. As the defendants argue, the Club would become a "subcommittee" of a campaign committee simply because it coordinated therewith. .... If correct, this means that any individual or group engaging in any kind of coordination with a candidate or campaign would risk forfeiting their right to engage in political speech. The legislative tail would wag the constitutional dog.

On May 7, the 7th Circuit Court of Appeals stayed the order on the grounds that a notice of appeal had been filed prior to the issuance of the order, thus divesting the District Court of Jurisdiction pending the appeal.

No. 14-C-139 (E.D. Wis. May 6, 2014).

Please see the original opinion for the court's exact language.


Richard P. Clem is an attorney and continuing legal education (CLE) provider in Minnesota. He has been in private practice in the Twin Cities for 25 years. He has a J.D., cum laude, from Hamline University School of Law in St. Paul and a B.A. in History from the University of Minnesota. His reported cases include: Asociacion Nacional de Pescadores a Pequena Escala o Artesanales de Colombia v. Dow Quimica de Colombia, 988 F.2d 559, rehearing denied, 5 F.3d 530 (5th Cir. 1993), cert. denied, 510 U.S. 1041 (1994); LaMott v. Apple Valley Health Care Center, 465 N.W.2d 585 (Minn. Ct. App. 1991); Abo el Ela v. State, 468 N.W.2d 580 (Minn. Ct. App. 1991).

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