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The John Doe’s Silvery Lining
Why the debate over allowing the John Doe case to proceed could be more important than the investigation itself.

Earlier this week, a U.S. district court judge sitting in Milwaukee, Rudolph Randa, dramatically froze the John Doe investigation into conservative groups in the state, a probe that’s sought to demonstrate illegal coordination with the campaign of Gov. Scott Walker. Subsequently, the George H. W. Bush appointee traded volleys with the 7th Circuit Court of Appeals in Chicago, which succeeded in tempering but not averting his original order. At the moment (7 p.m. on Friday), the investigation remains largely on ice, allowing time for debate in the appeals court to grind on, but stay tuned.

In granting an injunction to halt the John Doe, Randa sounded taken aback that the probe, now led by special prosecutor Francis Schmitz, had grown to include “nearly all right-of-center groups and individuals in Wisconsin who engaged in issue advocacy from 2010 to the present” – and similarly disappointed by what he saw as the investigation’s flimsy legal theory.

The defendants are pursuing criminal charges through a secret John Doe investigation against the plaintiffs for exercising issue advocacy speech rights that on their face are not subject to the regulations or statutes the defendants seek to enforce. This legitimate exercise of [Eric] O‘Keefe’s rights as an individual, and [Wisconsin Club for Growth’s] rights as a 501(c)(4) corporation, to speak on the issues has been characterized by the defendants as political activity covered by Chapter 11 of the Wisconsin Statutes, rendering the plaintiffs a subcommittee of the Friends of Scott Walker and requiring that money spent on such speech be reported as an in-kind campaign contribution. This interpretation is simply wrong.

Chapter 11 requires groups or committees involved in influencing elections to follow a number of rules, including reporting requirements and limits on contributions. This would seem to apply to issue ad groups such as Wisconsin Club for Growth, but legal precedent has narrowed what it means to operate “for the purpose of influencing” an election.

A 1976 Supreme Court ruling (Buckley v. Valeo), cited by Randa, established the “express advocacy” standard – and it may sound familiar. It’s why ads by groups such as Wisconsin Club for Growth never exhort voters to “Vote for Scott Walker on Nov. 6” and instead attack his opponent or talk up his philosophies in more general terms. In most cases, the standard calls for defining politicking as explicitly advocating for a particular candidate’s election – and in such explicitly explicit terms that no other interpretation is even possible. You literally have to say, “Elect/Vote for/Pick/Say yes to Scott Walker,” or something of the kind to qualify for “political” activity.

Many political players would prefer to stick closely to this definition, as Randa does, following the Supreme Court’s reasoning that a broader one would have a chilling effect on free speech. Gray areas remain as to what constitutes “coordination” and what restrictions the states can attach to their campaign finance laws – uncertainties that have led many outfits around the country to adopt an err-on-the-safe-side approach that shrinks from all association.

It’s been offered as a reason for the now-infamous “McConnelling” video, in which the Republican senator is seen staring creepily into the camera as music surges in the background. Many believe that he released the footage as b-roll for friendly groups to splice and dice into their commercials, with none of the compromising associations that might come from scheduling a shoot with the Kentucky senator or requesting video from his campaign.


As for Wisconsin, playing it safe may have fallen by the wayside during the 2012 recalls, and there’s evidence that organizations in other states are slipping as well. These days, only a minority of outside groups active in federal elections report all of their donors to the Federal Election Commission, according to Amber Wichowsky, an assistant professor of political science at Marquette. As recently as 2006, nearly all of them did.

One thing that's sorely lacking is more precedent on where the limits really lie, and in this respect, t
he John Doe case could be clarifying. The scorched earth disagreements already visited upon the gray regions of coordination are probably signs of a vigorous debate to come.

(illustration by Adrian Palomo)

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