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First Amendment ruling halting campaign spending probe in Wisconsin is back in effect

Updated: A federal judge who halted a probe of coordinated campaign spending in Wisconsin based on First Amendment concerns acted quickly after a federal appeals court stayed his decision.

The Chicago-based 7th U.S. Circuit Court of Appeals issued its stay on Wednesday, the day after the initial decision by U.S. District Judge Rudolph Randa of Milwaukee, report the Milwaukee Journal Sentinel and the Associated Press.

On Thursday, Randa ruled that an appeal in the case was frivolous, which left only part of the stay in place. His decision once again halts the campaign-spending probe, but does not require prosecutors to return or destroy documents from the investigation.The Milwaukee Journal Sentinel covers the latest development.

In his decision on Tuesday, Randa had found a violation of the First Amendment right to political speech in the five-county probe of coordinated campaign spending between the Wisconsin Club for Growth and the campaign of Wisconsin Gov. Scott Walker. Randa ordered prosecutors to return all property seized in the probe and to destroy evidence collected.

Prosecutors had argued that Wisconsin Club for Growth must abide by fundraising limits and report spending on behalf of Walker because it was acting as a subcommittee of Walker’s campaign. The prosecutors said the coordination transformed the club’s issue advocacy into express advocacy.

But Randa said government cannot regulate groups that engage in issue advocacy, which doesn’t urge a specific vote for or against a candidate. He cited the Supreme Court’s decisions in Citizens United and McCutcheon, a ruling issued last month eliminating aggregate limits on campaign spending by individuals.

“The plaintiffs have found a way to circumvent campaign finance laws, and that circumvention should not and cannot be condemned or restricted,” Randa wrote in his decision (PDF). “Instead, it should be recognized as promoting political speech, an activity that is ‘ingrained in our culture,’ ” Randa said, quoting from Citizens United.

Randa said investigation targets appeared to be nearly all right-of-center groups and individuals in Wisconsin who engaged in issue advocacy from 2010 to the present. “Ultimately, and perhaps most importantly, the timing of the investigation has frustrated the ability of WCFG and other right-leaning organizations to participate in the 2014 legislative session and election cycle,” Randa wrote.

The judge said subpoenas had been issued around the country in the so-called John Doe probe, an investigation overseen by judges in which prosecutors compel people to produce documents and testify without disclosing the investigation.

Randa said the probe was “replete with armed raids on homes to collect evidence that would support their criminal prosecution.”

“Sheriff deputy vehicles used bright floodlights to illuminate the targets‘ homes,” Randa wrote. “Deputies executed the search warrants, seizing business papers, computer equipment, phones and other devices, while their targets were restrained under police supervision and denied the ability to contact their attorneys.”

In seeking a stay of Randa’s ruling, prosecutors argued the judge was without jurisdiction to issue a decision because of pending appeals, according to the Journal Sentinel. The 7th Circuit panel agreed. “Once a litigant files notice of appeal,” the appeals court said in its order (PDF), “a district court may not take any further action in the suit unless it certifies that the appeal is frivolous.”

The pending appeal had contended the prosecutors had immunity in the suit by the Wisconsin Club for Growth.

Even if Randa determines the appeal to be frivolous, “the portions of the injunction that require defendants to return or destroy documents will remain stayed as long as proceedings continue in this court,” the appeals court said in its order on Wednesday. “Compliance with those portions of the injunction could moot some or all of the issues on appeal.”

On Thursday, Randa issued his new ruling (PDF) certifying the appeals as frivolous. “To be clear,” Randa wrote, “the court is absolutely convinced that the defendants’ attempt to appeal this issue is a frivolous effort to deprive the court of its jurisdiction to enter an injunction.”

According to the Journal Sentinel, Randa’s initial ruling was “rated stunning by Democrats and Republicans alike.”

Hat tip to How Appealing and @AppellateDaily.

Updated at 8:40 a.m. to add hat tip. Updated at 12:45 p.m. to add Randa’s decision finding the prosecutors’ appeal is frivolous. Corrected at 1:10 p.m. to report that Randa’s latest decision was issued on Thursday.