The Wisconsin Supreme Court was badly divided on the “coordination” question that it resolved in favor ending an ongoing criminal investigation. The majority and dissents expressed their disagreement in harsh terms, and there was a similar outbreak of ill-will or impatience among experts and seasoned observers trading views on the election law list serv. Dividing the camps for the sake of convenience into progressives and conservatives: the former were appalled by the case and the latter overjoyed, and neither could believe how the other was reacting. The case was either a nightmare for desperately needed reform, or a vindication of the rule of law in a struggle with political persecution and police state tactics. But are the issues being fairly brought out amid all this vitriol, and is it necessarily true that the opinions on the coordination issues in Wisconsin must always and inevitably fall out along ideological and party lines?
There should be common ground on one threshold point: as the Court in Buckley declared so long ago, the constitutional treatment of issue advocacy presents doctrinal challenges. The issue is not whether a group’s issue advocacy is entitled to a high level of protection in general; it is, but there is disagreement about how much. Some would say, “none at all,” if a candidate is running the show and the speech is just hers, for all practical purposes under her control.
The arguments can go in various directions. Should there be doubt that the speech is truly issues speech, regulation turns on its content —the presence or absence of express advocacy or its functional equivalent. If it is issues speech, then the argument shifts to whether it matters that a candidate requests, controls or shapes the speech through “coordination”, and if it does, how precisely the prohibited coordination is defined.