[EL] Wisconsin John Doe decision

Wed May 7 15:46:34 PDT 2014

Thanks, Brendan.  This actually proves my point, though.  I don’t think either the investigators or the targets were well-served by the secrecy or the tactics used in this case.  If it was non-political (and I think there are facts that would lead to the opposite conclusion as well) the tactics and secrecy created, if nothing else, the appearance of a political motive, or, to use a phrase with which we are more familiar, the appearance of corruption.  And for pro-regulation people, I would think the appearance of that such laws were being used for what could easily appear to be illicit purposes would be the last thing they would want, so I’m still surprised that there has been such criticism of the targets for “leaking” material, as well as no call by pro-regulation folks to make the existence of the investigation public.

From: brendan.fischer at gmail.com [mailto:brendan.fischer at gmail.com] On Behalf Of brendan fischer
Sent: Wednesday, May 07, 2014 3:18 PM
To: Bill Maurer; law-election at department-lists.uci.edu
Cc: Rick Hasen
Subject: Re: [EL] Wisconsin John Doe decision

The reason that the John Doe has been viewed publicly as a partisan or politically-motivated probe is because of selective leaks and a savvy media strategy by the targets of the investigation. Without expecting to convince anybody on this list, it is should be noted that:

The Special Prosecutor leading the probe, Francis Schmitz, voted for Walker during the recall elections and was on George W. Bush's shortlist for a U.S. attorney appointment.

Wisconsin's Government Accountability Board, which consists of retired judges from both political parties appointed by the Governor and confirmed by the Senate, voted unanimously to authorize the investigation.

The Milwaukee District Attorney who initiated the investigation, John Chisholm, is a Democrat, but contrary to the "selective prosecution" allegations, his office has pursued campaign finance charges against multiple Democrats in recent years. In fact, Chisholm's office levied a $20,000 fine for campaign finance violations against Walker's opponent in the 2012 recall election, Tom Barrett.

Plus, despite claims that WI Club for Growth was blindsided by the investigation, since 1999 Wisconsin's statutes had been interpreted as barring issue ad coordination with candidates. See Coalition for Voter Participation v. Elections Bd., 231 Wis. 2d 670, 605 N.W.2d 654 (Ct. App. 1999), review denied, 231 Wis. 2d 377, 607 N.W.2d 293 (1999). In that case, the Wisconsin Court of Appeals held that Wisconsin law can count issue ad "expenditures that are 'coordinated' with, or made 'in cooperation with or with the consent of a candidate'... as campaign contributions," and green-lighted a state elections board investigation into illegal coordination between Jon Wilcox's 1997 campaign for Supreme Court and an independent group that sent issue ad postcards.

The 1999 probe resulted in a settlement where Wilcox's campaign manager Mark Block (who later went on to manage Herman Cain's presidential campaign and appear in the "smoking man" ad) was fined $15,000 and barred from politics for three years. The elections board found that Wilcox had no knowledge of the illegal issue ad coordination, yet he agreed to personally pay a $10,000 fine, stating that he was ultimately responsible for the conduct of his campaign staff.

The Coalition for Voter Participation decision didn't settle the question of how issue ads are treated under Wisconsin's statues, but well in advance of the 2012 elections there was highly-publicized precedent suggesting they would be treated as in-kind contributions if coordinated with a candidate.

Also worth noting that when Judge Randa issued his decision deeming issue advocacy beyond the scope of Wisconsin's campaign finance statutes, proceedings were pending before a Wisconsin appellate court (and a motion for an original action had been filed with the Wisconsin Supreme Court) to resolve the question of how Wisconsin statutes treat issue ad coordination.

On Wed, May 7, 2014 at 3:45 PM, Bill Maurer <wmaurer at ij.org<mailto:wmaurer at ij.org>> wrote:
Rick’s right.  I’ll rephrase my point.

Isn’t this proceeding exactly the kind of politically-tainted proceeding that would cause people to lose confidence in the political process?  Isn’t that the claimed purpose of campaign finance laws in the first instance?  And wouldn’t publicity help ensure that these kinds of investigations are not undertaken for political reasons?

I had thought that public oversight of the machineries of government in investigations of campaign finance laws would be an area where de-reg and pro-reg people would share an interest in public oversight and I am legitimately surprised that those who support increased regulation of political finance—and who I would think would want to have as open a system as possible to reassure the public that the laws cannot be manipulated for political gain—are not more concerned about this case and the secrecy in which it was undertaken.  Secret, heavy-handed investigations by politically-interested parties certainly gives credence to the idea that campaign finance laws can easily be just become a tool to conduct campaigns in a courtroom.

(Also, please note that my snark about “sunlight” was directed (in my mind, at least) at Justice Brandeis himself, in that the analogy is based on a factually ridiculous premise.  It’s like saying “Oxygen is the best flame retardant.”  Sunlight is absolutely not the best disinfectant.  No doctor would say, “That cut looks  infected.  Let’s get some sunlight on it.”  It may explain why so many people died of sepsis back then.)

Bill

From: law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu> [mailto:law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu>] On Behalf Of Rick Hasen
Sent: Wednesday, May 07, 2014 12:09 PM
To: law-election at department-lists.uci.edu<mailto:law-election at department-lists.uci.edu>

Subject: Re: [EL] Wisconsin John Doe decision

I think everyone needs to cool it on the snark.  We were doing very well discussing substance.

Rather than phrase points with sarcasm, say what you mean directly.

On 5/7/14, 12:05 PM, Josh Orton wrote:
You're totally right - sunlight is the best disinfectant. I've made it my practice to always violate court orders by leaking to actual named news reporters instead of anonymous opinion pages.

On Wed, May 7, 2014 at 1:26 PM, Bill Maurer <wmaurer at ij.org<mailto:wmaurer at ij.org>> wrote:
So, the targets of this investigation are at fault because they "leaked" information to the WSJ?

But I thought "sunlight" was the best "disinfectant."

I would think that "sunlight" of what appears to be a politically-motivated use of law enforcement in secret proceedings is exactly the kind of thing that should be given public scrutiny or else the people will lose confidence in the political process and believe that the government is not working in their best interest but in the best interest of unidentified entities with political pull.  But I guess that principle only applies to $25 donations to initiative campaigns and not police raiding someone's house in the middle of the night because they supported the wrong candidate.  Apparently, that can and should remain absolutely secret.

Does anyone have a list of when sunlight is and is not the best disinfectant?  I mean, besides medicine and cleaning and pretty much any other time one might be tempted to use sunlight to disinfect anything.

Bill

-----Original Message-----
From: law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu> [mailto:law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu>] On Behalf Of Trevor Potter
Sent: Wednesday, May 07, 2014 11:23 AM
To: David Keating
Cc: Law-election at department-lists.uci.edu<mailto:Law-election at department-lists.uci.edu>
Subject: Re: [EL] Wisconsin John Doe decision
David writes:" What happened in WI was outrageous and I hope it will get the attention it deserves.  Those who orchestrated this hopefully will be held accountable."

For a moment I thought this outrage was aimed at those who set out to circumvent ( the Judge's word)  WI campaign finance law  by coordinating advertising with a candidate for public office while seeking to avoid contribution limits, and then leaked secret information about a law enforcement investigation in an attempt to circumvent that too. But I guess not....

Trevor Potter

Sent from my iPad

> On May 7, 2014, at 12:38 PM, "David Keating" <dkeating at campaignfreedom.org<mailto:dkeating at campaignfreedom.org>> wrote:
>
> What happened in WI was outrageous and I hope it will get the attention it deserves.  Those who orchestrated this hopefully will be held accountable.

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