By Bruce Vielmetti, Milwaukee Journal Sentinel
MILWAUKEE — Whether Wisconsin Gov. Scott Walker’s campaign improperly coordinated with outside groups in 2011 and 2012 could turn on something called “express advocacy.”
And how courts decide the issue could send Wisconsin’s John Doe controversy to the U.S. Supreme Court and remove some of the last remaining restrictions on outside money’s role in elections.
In election law, express advocacy usually refers to ads that mention a specific candidate, by name or other means, and advocate a vote for or against the candidate.
In quashing prosecutors’ subpoenas for records from the Wisconsin Club for Growth, its director Eric O’Keefe and others, a state judge said in January he was “persuaded” that state law against coordination between such groups and campaigns banned only concerted efforts involving express advocacy.
But the prosecutors say that’s just flat wrong. In their legal pleadings, they insist that even if third parties’ ads about a campaign are instead “issue ads” it doesn’t free them from restrictions against coordinating with the campaigns about when, where and how those ads run, or who pays for them.
Walker has said the judge’s decision — along with U.S. District Judge Rudolph Randa’s order to halt the investigation based on his conclusion that the restrictions would violate the First Amendment — put an end to the matter.
But a federal appeals court has yet to rule on prosecutors’ appeal. While conservative legal scholars expect the 7th U.S. Circuit Court of Appeals to affirm Randa’s decision, other experts predict it will not.
Richard Hasen, a law professor at University of California, Irvine, writing for Slate on Friday, said if the Walker defense succeeds, it “could bring down the few remaining limits we have left on money in politics. It would allow virtually unbridled coordination between outside groups and candidates, giving money ever more influence over politicians and elections.”
With so much at stake, it seems there’s a strong chance the Doe case ruling might wind up before the U.S. Supreme Court no matter which way the 7th Circuit rules.
The conservative wing of the Supreme Court has lifted other restrictions on campaign spending, like corporate spending limits and aggregate limits on contributions by individuals. Some believe, given the right case, it might also abolish rules against coordination.
“If Randa’s ruling stands on appeal, then the rules against coordination between a candidate and outside groups would go out the window in Wisconsin,” Hasen wrote. “That would be license for big donors to give unlimited sums to groups that will do candidates’ bidding.”
Rick Esenberg, director of the conservative Wisconsin Institute of Law and Liberty, believes that’s not “some regrettable constitutional loophole.”
Writing Friday for Right Wisconsin, Esenberg said the newly revealed John Doe information only strengthens the position critics of the investigation have taken all along.
“If the First Amendment means anything, it must protect the ability of people to pool their resources and speak at a time when people are likely to be listening,” Esenberg wrote.
Prosecutors say that if such coordinated spending isn’t reported, that’s like the campaign getting undisclosed in-kind contributions, and undermines the disclosure aspects of campaign finance law — and violates Wisconsin’s specific statutes.
But whether ads that are something other than “express advocacy” are subject to Wisconsin law may be the key distinction. Prosecutors cite a 1999 Wisconsin appellate case that suggests rules against coordinated spending also cover issue ads. In quashing the subpoenas, Reserve Circuit Judge Gregory Peterson wrote that while that case gave him pause, he thinks the changes in First Amendment law over the past 15 years would likely undo that case’s holding.
In a recent case, the 7th Circuit ruled that “political purpose” for outside groups really is express advocacy, or something just like it. The John Doe prosecutors suggest that the outside groups working with Walker’s campaign in effect became subcommittees of his campaign, and therefore a broader definition of political purpose applies.
Photo: Gage Skidmore via Flickr