Both sides in the high-stakes investigation over coordination between Gov. Scott Walker’s campaign and ostensibly independent political groups will air their dispute Tuesday before a federal appeals court in Chicago, less than two months before the November election.
At issue: Will the so-called John Doe investigation be allowed to continue?
In May, a federal district judge in Milwaukee halted the probe at the request of Wisconsin Club for Growth. The decision by U.S. District Judge Rudolph Randa was appealed by prosecutors and is the subject of Tuesday’s oral arguments before a U.S. 7th Circuit Court of Appeals panel.
The group and one of its directors, Eric O’Keefe, argued that the investigation is illegal because it is aimed at silencing conservative voices in Wisconsin. Prosecutors were violating their civil rights, the group said, by seeking to criminalize political speech protected by the U.S. Constitution.
In a related matter, the judges on Tuesday also will hear a request by Club for Growth and unnamed targets of the investigation to keep certain documents sealed. A media group including the Wisconsin Newspaper Association has requested that all of the records in the case be unsealed.
UW-Madison law professor Donald Downs said any decision reached by the 7th Circuit could be important on several levels. The appeals court could clarify whether Wisconsin banning coordination between campaigns and producers of so-called “issue ads” — often thinly veiled political ads that skirt regulation because they don’t explicitly tell people to vote for or against a particular candidate — is constitutional. And it could set limits on the power of prosecutors to pursue such investigations.
“Maybe under their (prosecutors’) interpretation of the law, Wisconsin law would prohibit that (coordination),” Downs said. “Maybe that is Wisconsin’s law, but the question becomes, ‘Is the law constitutional?’ Randa says no.”
Whether the court allows the investigation to go forward also could affect the tight race between Walker and Democrat Mary Burke. For that reason, Downs expects the court likely would issue its decision before the Nov. 4 election.
“I think it’s a really important decision,” Downs said.
What is the main issue in the case?
The John Doe prosecution team, led by former Assistant U.S. Attorney Francis Schmitz, argues that Walker and his campaign violated state law when they secretly raised money and coordinated advertising with Club for Growth and 28 other groups to benefit Walker and Republican state senators during recall elections in 2011 and 2012.
The investigation was initiated by Democratic Milwaukee County District Attorney John Chisholm in August 2012 and expanded to four other counties last year before being consolidated under one case.
Prosecutors argue such activity should have been reported by Walker’s campaign as contributions and subject to restrictions on the amount and source of donations.
Among the previously secret contributions to Club for Growth was $700,000 from Gogebic Taconite. The company sought and won from Walker and the Republican-controlled Legislature a controversial easing of state environmental standards in anticipation of opening a massive iron mine in northern Wisconsin. Walker has said he was unaware of the Gogebic contribution.
Club for Growth argues that such coordination is legal because it involves pure political speech that cannot be regulated by the government. It points out that issue advertising that does not expressly advocate for or against a specific candidate is constitutionally protected and groups that do it are not required to report their donors. The group also said it ran no ads that benefited Walker.
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“Defendants do not identify any broadcast advertisements by the Club that could have had anything to do — however tenuous — with Walker’s recall election,” the group wrote in a brief filed last week. “The reason is simple: there are none.”
Prosecutors have argued that issue advocacy is subject to regulation when it is coordinated with a candidate. And, in a document inadvertently unsealed last month, Schmitz argued that Walker also coordinated with groups including the Republican Governors’ Association, which did run ads expressly backing Walker and GOP senators during the recalls in 2011 and 2012.
Coordination with all such groups is tantamount to receiving a campaign contribution, the prosecutors have argued, and is a legitimate arena for government regulation.
“The public has a paramount interest in open and fair elections,” the prosecutors wrote. “Plaintiffs, on the other hand, can have no valid interest in secret coordination of the activities ... to facilitate anonymous and unlimited campaign donations.”
What constitutes illegal coordination under Wisconsin law?
Prosecutors say Walker campaign adviser R.J. Johnson also worked for Club for Growth and coordinated the group’s activities with Walker’s campaign. Court records show Walker himself contacted donors and urged them to donate money to Club for Growth, which then parceled out millions of dollars to various conservative groups supporting Walker and Senate Republicans.
Campaign-finance experts backing both sides in the dispute have filed friend-of-the-court briefs arguing the legality of such activity.
Among them are four former members of the Federal Elections Commission: Lee Ann Elliott, David Mason, Hans von Spakovsky and Darryl Wold. The four argued in a brief filed last week that the way Wisconsin law has been interpreted sets too vague of a standard that may be unconstitutional. The Wisconsin Court of Appeals found in 1999 that coordination between the campaign of Supreme Court Justice Jon Wilcox and an issue ad group that mailed out 354,000 postcards to voters should have been reported as a contribution to Wilcox’s campaign “whether or not they constitute express advocacy.”
But federal regulations are “narrowly tailored” to ban coordination only when the resulting advertisements clearly back identified candidates, the former FEC commissioners wrote. Any broader regulation is illegal, they argued, because it chills protected political speech.
The Campaign Legal Center and Democracy 21 argued in its friend-of-the-court brief that the U.S. Supreme Court has already decided that issue groups that coordinate with a candidate or campaign can be regulated the same as groups that advocate election or defeat of a candidate, which must report their sources of funds.
“Judge Randa enables large-scale circumvention of the contribution limits, allowing precisely the type of quid pro quo corruption that the limits were designed to prevent,” the groups wrote.
Did Judge Randa have the authority to halt the investigation?
Prosecutors argue that Randa overstepped his bounds in halting a legal investigation and that as prosecutors, they are immune from such intrusions.
The Club for Growth argued — successfully so far — that the danger to free speech was so high that Randa needed to halt the probe. The group likened the investigation to tactics used in the former Soviet Union to quash dissent.
In a brief filed last week, they wrote, “Defendants subpoenaed, surveyed, harassed, and invaded the homes of Wisconsin conservatives on a host of pretextual theories — including, most recently, trumped-up campaign-finance charges — for the purpose of retaliating against and chilling their political involvement.”