[EL] my thoughts on the John Doe case

Thu Jul 16 08:43:25 PDT 2015

That campaign "reform" is too terribly important to deal in bright-line
rules?

You're welcome.
 On Jul 16, 2015 11:37 AM, "Rick Hasen" <rhasen at law.uci.edu> wrote:

>  Thanks for proving my second point Steve.
>
> On 7/16/15 8:27 AM, Steve Hoersting wrote:
>
> Rick --
>
> Regarding "all they have to do is avoid express advocacy"
>
> I find it troubling you ignore the Vagueness Doctrine -- a bedrock of
> campaign law.
>
> Regarding "unverified dawn raids."
>
> I missed your paragraph explaining it was illegal for anyone to verify
> them.
>
> Rick: Yours is not a world even you want to live in. UCI is not a
> fortress, neither now nor tomorrow.
>
> Steve
> On Jul 16, 2015 11:19 AM, "Rick Hasen" <rhasen at law.uci.edu> wrote:
>
>>  Analysis of Wisconsin John Doe Ruling: Bad News for Campaign Finance
>> Laws <http://electionlawblog.org/?p=74355>
>> Posted on July 16, 2015 7:36 am <http://electionlawblog.org/?p=74355> by Rick
>> 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, see my 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 the NY 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 in my 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 Sentinel editorialized
>> <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 article in the conservative
>> National Review
>> <http://www.nationalreview.com/article/417155/wisconsins-shame-i-thought-it-was-home-invasion-david-french>.
>> An equally breathless report by 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 and The 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, fears which 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 an unsurprising 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.*]
>>  [image: Share]
>> <https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D74355&title=Analysis%20of%20Wisconsin%20John%20Doe%20Ruling%3A%20Bad%20News%20for%20Campaign%20Finance%20Laws&description=>
>>  Posted in campaign finance <http://electionlawblog.org/?cat=10>,
>> chicanery <http://electionlawblog.org/?cat=12>
>>
>> --
>> Rick Hasen
>> Chancellor's Professor of Law and Political Science
>> UC Irvine School of Law
>> 401 E. Peltason Dr., Suite 1000
>> Irvine, CA 92697-8000949.824.3072 - office949.824.0495 - faxrhasen at law.uci.eduhttp://www.law.uci.edu/faculty/full-time/hasen/http://electionlawblog.org
>>
>>
>> _______________________________________________
>> Law-election mailing list
>> Law-election at department-lists.uci.edu
>> http://department-lists.uci.edu/mailman/listinfo/law-election
>>
>
> --
> Rick Hasen
> Chancellor's Professor of Law and Political Science
> UC Irvine School of Law
> 401 E. Peltason Dr., Suite 1000
> Irvine, CA 92697-8000949.824.3072 - office949.824.0495 - faxrhasen at law.uci.eduhttp://www.law.uci.edu/faculty/full-time/hasen/http://electionlawblog.org
>
>
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20150716/9bf2c877/attachment.html>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: not available
Type: image/png
Size: 1504 bytes
Desc: not available
URL: <http://webshare.law.ucla.edu/Listservs/law-election/attachments/20150716/9bf2c877/attachment.png>