It turns out we were a little too quick in our post last week proclaiming the end of the case challenging the new Wisconsin campaign finance rule. The case is in federal court and the judge has expressed concern that he might not have jurisdiction to enter a judgment, even an agreed one, that effectively rules on a state law issue (because, typically, federal courts have no jurisdiction over state law issues like this). A separate case challenging the rule may still proceed in the Wisconsin Supreme Court, where the challengers have asked for expedited consideration because the election is looming. Indeed, the Court has now issued a temporary injunction barring the state from enforcing the new rule. The state seems terrified of an actual final ruling in any challenge to this rule, and had stated to the Wisconsin Supreme Court that it would agree not to enforce the rule even if the judge in the federal case concludes he lacks jurisdiction to enter the state’s agreement not to enforce the rule in federal court.
Apparently, no one is in favor of keeping this rule on the books, which raises the question, how did we get here? The answer is either that the state does not understand campaign finance law and has realized the error of its ways now that the lawyers are involved or that the rule was an attempt to get away with something that the First Amendment does not allow. Either way, it is not exactly a ringing endorsement of campaign finance laws and the cases applying them, which are so complicated and byzantine that few legislators and even courts can sort out the rules and know what speech can be regulated and what cannot. Perhaps the questions in this case will be sorted out if two different courts take a shot at it, but that is small consolation for anyone who believes, as we do, that the purpose of the First Amendment is to prevent people who want to speak from having to go through all of this nonsense in the first place. This is all part of the censors’ playbook: throw enough regulations at the wall and at least a few restrictions on speech will stick.
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