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Ultimately, Wisconsin John Doe Case Turns On How Far Campaign Coordination Can Go

McClatchy Tribune News Service Politics

Ultimately, Wisconsin John Doe Case Turns On How Far Campaign Coordination Can Go

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Scott Walker, Iran, Wisconsin, Obama, Deal, Foreign Policy, Politics

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

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10 Comments

  1. FireBaron June 23, 2014

    Why don’t they just change the sign over the Supreme Court to say “Koch Brothers Opinion Generation Panel”?

    Reply
  2. howa4x June 23, 2014

    Scalia has become the judge from corporate America and sad to say Thomas has played last one in the door by using affirmative action to get where he is today and not voting against others using it. This is why afro Americans can’t get ahead because of people like Thomas who votes against them to show how white he really is. This is why another republican can’t be president

    Reply
    1. Canistercook June 23, 2014

      Guess you feel Thomas used ‘affirmative action’ and Obama didn’t!

      Reply
      1. howa4x June 23, 2014

        Of course Obama used it and has worked to promote social justice. What has that fool on Scotus done?

        Reply
      2. Independent1 June 23, 2014

        Not only did Obama use it, and by using it, graduated Magna Cum Laude from Harvard Law School. All his professors at Harvard have nothing but very high praise for him as a student there. So your point is????

        Reply
  3. charleo1 June 23, 2014

    If you think about it, what’s the use of going to all the trouble to elect a dolt like George W. Bush, if he can’t pack the Supreme Court with such blatant unmitigated, corporate shills, as John, “the money is speech,” Roberts, or Samuel, “no it won’t, totally corrupt the system,” Alito? Add them to more of
    Ronnie Reagan’s afterbirths, “my pals are my business,” Scalia, and, “No
    more Affirmative Action quotas, after mine,” Thomas. The entire IRS affair, is
    about whether T-Party funding operations, or other entirely political fund raising operations should be considered for tax exempt status like we do for say, The Red Cross, or The Haitian Relief Fund, or The Make a Wish Foundation. The message to the much hated, always maligned IRS from the
    ruling elite of the Conservative Right is. Well, they had better be.

    Reply
  4. Canistercook June 23, 2014

    Walker’s battle is with the over-reaching unions and a power struggle. We have teachers unions that advocate educating illegal children to provide jobs and power for them and support tenure for all including bad teachers. Reason and common sense for the benefit of all should prevail.

    Reply
    1. Independent1 June 23, 2014

      Walker moved Wisconsin from like 12th in the nation with respect to job growth to something like 43rd. Real progress there, huH!!

      Reply
  5. Pamby50 June 23, 2014

    This whole John Doe investigation reminds me of when Stephen Colbert was going to set up is super pac. He had a lawyer & John Stewart on his show to sign all the paperwork. What Gov. Scott Walker did was wrong. Wake up WI and vote him out.

    Reply
  6. Mark Forsyth June 23, 2014

    Scott: Hey Joe,ya got those black jackboots and swaztikas ready? Joe:Yeah boss,I just need to know if ya want me to send ’em to the Capitol building in Madison or the Supreme Court in D.C.

    Reply

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