[EL] my thoughts on the John Doe case

Thu Jul 16 08:17:14 PDT 2015

    Analysis of Wisconsin John Doe Ruling: Bad News for Campaign Finance
    Laws <http://electionlawblog.org/?p=74355>

Posted onJuly 16, 2015 7:36 am 
<http://electionlawblog.org/?p=74355>byRick Hasen 
<http://electionlawblog.org/?author=3>

Today’s lengthy and contentious 4-2 ruling 
<http://www.wicourts.gov/sc/opinion/DisplayDocument.html?content=html&seqNo=144526> dividing 
the Court on partisan/ideological lines, from the Wisconsin Supreme 
Court ending the so-called “John Doe” probe, is significant for three 
reasons: (1) it removes a cloud from the Scott Walker presidential 
campaign; (2) it guts, perhaps for years, the effectiveness of the state 
of Wisconsin’s campaign finance laws, and (3) it reenforces conservative 
beliefs that they are the victims of frightening harassment, a belief 
which is likely to lead conservative judges to strike more campaign 
laws.  The case also raises significant questions about judicial recusal 
which go unanswered, and provide one of two potential bases to seek U.S. 
Supreme Court review in this case. Still, high court review seems unlikely.

I will not spend any time on the effects of the case on the Scott Walker 
candidacy, as this is an obvious benefit.

Nor will I review the background of this convoluted set of cases.  For 
more, seemy earlier Slate piece 
<http://www.slate.com/articles/news_and_politics/jurisprudence/2014/06/the_scott_walker_case_in_wisconsin_could_shred_the_remaining_limits_on_influencing.html?wpsrc>, 
as well as early coverage of today’s ruling in theNY Times 
<http://www.nytimes.com/2015/07/17/us/wisconsin-court-to-rule-on-inquiry-involving-scott-walkers-2012-campaign.html?hp&action=click&pgtype=Homepage&module=first-column-region&region=top-news&WT.nav=top-news>,Milwaukee 
Journal-Sentinel, 
<http://www.jsonline.com/news/statepolitics/wisconsin-supreme-court-ends-john-doe-probe-into-scott-walkers-campaign-b99535414z1-315784501.html>andWisconsin 
State Journal 
<http://host.madison.com/wsj/news/local/govt-and-politics/supreme-court-ends-john-doe-probe-that-threatened-scott-walker/article_50f22c3b-27c9-5906-92e8-ded75ed50954.html>. 
So let me focus on the remaining two points, and the potential for Court 
review.

*Gutting of campaign finance. *The conservatives on the Court have held 
that Wisconsin’s existing campaign finance laws violate the First 
Amendment to the extent they limit coordination between a candidate and 
/any group/, even a 501c4 group not disclosing its donors, on campaigns 
to support that candidate. The only thing the nominally outside group 
has to do is to avoid words of express advocacy or their functional 
equivalent.  Avoiding express advocacy while vigorously supporting a 
candidate, as we know from the federal period before McCain-Feingold, is 
child’s play. That is, a candidate can now direct unlimited 
contributions to a nominally outside group and tell that group what ads 
to run, when, and how.  If you think it is a problem for someone to be 
able to give millions of dollars directly to a candidate to support that 
candidate’s campaign, then this should be very troubling to you. It was 
a theory of coordination strongly rejected by the 7th Circuit in the 
federal version of the John Doe case. And there’s no prospect that the 
Wisconsin legislature, dominated by Republicans and already weakening 
campaign finance law, will fix this.  This applies only to Wisconsin 
elections (and not federal elections in Wisconsin) but is very, very bad 
news. (More analysis inmy earlier /Slate/piece.) 
<http://www.slate.com/articles/news_and_politics/jurisprudence/2014/06/the_scott_walker_case_in_wisconsin_could_shred_the_remaining_limits_on_influencing.html?wpsrc>

*Conservative harassment.*For months, conservatives have been sending me 
stories for ELB purporting to show the horrors of the investigation 
(late night raids, etc.)  However, these stories were never fully 
verified. As the Milwaukee-Journal Sentineleditorialized 
<http://www.jsonline.com/news/opinion/open-john-doe-investigation-of-gov-scott-walker-to-the-public-b99491741z1-302162641.html> about 
the selling of this story: “A breathless articlein the conservative 
National Review 
<http://www.nationalreview.com/article/417155/wisconsins-shame-i-thought-it-was-home-invasion-david-french>. 
An equally breathless reportby Megyn Kelly on Fox News 
<http://www.foxnews.com/transcript/2015/04/24/scott-walker-supporters-claim-police-raided-homes-over-politics/>.Tart 
comments from Gov. Scott 
Walker<https://www.youtube.com/watch?v=cuuGYGWoaC0>on the campaign trail 
in Iowa…. onservatives targeted by the John Doe investigation for more 
than a year have declined to discuss their concerns with the Journal 
Sentinel or other independent news outlets that will seek out all sides 
to a story. They have told their stories only to partisan outlets that 
share their political agenda, such as Fox News, the National Review 
andThe Wall Street Journal’s editorial page 
<http://www.wsj.com/articles/another-john-doe-disclosure-1402265159>(not 
its news staff).”  Now the conservatives on the Supreme Court have 
validated this version of events, and without full transparency the 
stories cannot be fully investigated. One Justice even went so far as to 
reach the issue of the constitutionality of the nighttime raids even 
though the issue was not before the Court. (I would love that Justice to 
ride along with police in the poorer parts of Milwaukee at night and 
perhaps gain some appreciation of what others face from law enforcement 
every day.) In the meantime, they fit into a conservative meme of 
persecution for conservative ideas. Expect this to lead to calls for 
even more laws to be struck down out of fear of persecution, fearswhich 
generally do not stand up to scrutiny 
<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1948313>.

*Recusal?*We know that one of the prosecutors in the case asked at least 
one of the Justices who decided the case to recuse because the Justice 
may have been supported by some of the campaign spending in the case. As 
the dissenting Justice Abrahamson notes, the majority did not even 
respond to the issue. It seems to me that this at least deserves a 
response as to why recusal is not warranted.

*U.S. Supreme Court review?*The dissent notes that under the U.S. 
Supreme Court’s /Caperton /decision/, /the failure to recuse in this 
case could be a due process violation. At least theoretically, that’s an 
issue which could go to the U.S. Supreme Court. The Court could also 
potentially consider the First Amendment holding about coordinated issue 
advocacy. My guess is that the Court will decline review in this case, 
and frankly, given this Supreme Court on campaign finance issues, I’d be 
very afraid of having this issue before this Supreme Court. I mean I 
think Justice Kennedy would consider coordinated issue advocacy to be 
regulable, but I don’t know that I’d be the entire country’s campaign 
finance system on it.

In all, this is anunsurprising partisan holding 
<http://electionlawblog.org/?p=74299>on a partisan court about a 
campaign finance investigation with partisan implications. (True, 
Justice Crooks who dissented campaigned as a conservative, but started 
as a Democrat. So I guess there’s that to argue this is not fully a 
partisan decision.) The Wisconsin Supreme Court has been among the most 
bitterly divided along partisan lines. I doubt that after this they will 
move on. This will just further entrench things.  A bad day for campaign 
finance, and a worse day for Wisconsin.

[/This post has been updated and edited./]

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-- 
Rick Hasen
Chancellor's Professor of Law and Political Science
UC Irvine School of Law
401 E. Peltason Dr., Suite 1000
Irvine, CA 92697-8000
949.824.3072 - office
949.824.0495 - fax
rhasen at law.uci.edu
http://www.law.uci.edu/faculty/full-time/hasen/
http://electionlawblog.org

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