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.
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.
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.
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.
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”
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.
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, the 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)