[EL] my thoughts on the John Doe case

Rick Hasen rhasen at law.uci.edu
Thu Jul 16 08:50:54 PDT 2015 

So they were under a gag order and could tell no one except the National 
Review, FOX News, and the WSJ editorial page?

And as far as police investigations go, and raids looking for illegal 
activity---what do you think these ordinarily look like outside the 
campaign finance context?

Rick

On 7/16/15 8:38 AM, Lycan, Eric wrote:
>
> I find it ironic that you question the harassment of the subpoena 
> targets and the stories of the pre-dawn paramilitary raids, and 
> dismiss them as a “conservative meme”, on the bases that they shared 
> their stories only with conservative media outlets and that “without 
> full transparency the stories cannot be fully investigated.” These are 
> persons who had suffered exactly that kind of terrifying harassment, 
> had been threatened with imprisonment if they told anyone, yet it is 
> somehow suspicious that they told their stories only to media sources 
> unlikely to out them to the prosecution?  The call for transparency in 
> investigating these stories is particularly ironic given the complete 
> lack of transparency of the investigation itself and of the motives of 
> the prosecutors and investigators.
>
> I would really like to see someone on the reformist side argue for 
> their interpretation of the coordination issue without also defending 
> the conduct of the John Doe investigation and the abuses in the search 
> warrants and service thereof.  As the axiom goes, bad cases make bad 
> law. When the government oversteps like it did in this case it 
> validates the concerns of those who oppose the regulation of political 
> speech. Does anyone on the reformer side regret the actions of the 
> John Doe investigators, or blame those actions at least in part for 
> the ruling that coordination is prohibited only in relation to express 
> advocacy?
>
> Dinsmore
>
> *D. Eric Lycan
> *Partner
>
> Dinsmore & Shohl LLP  • Legal Counsel
> Lexington Financial Center
> 250 West Main Street, Suite 1400
> Lexington, KY 40507
> *T*(859) 425-1047 • *F*(859) 425-1099
> *E*eric.lycan at dinsmore.com <mailto:eric.lycan at dinsmore.com> • 
> dinsmore.com <http://www.dinsmore.com>
>
> /@KY_campaignlaw///
>
> *From:*law-election-bounces at department-lists.uci.edu 
> [mailto:law-election-bounces at department-lists.uci.edu] *On Behalf Of 
> *Rick Hasen
> *Sent:* Thursday, July 16, 2015 11:17 AM
> *To:* law-election at UCI.edu
> *Subject:* [EL] my thoughts on the John Doe case
>
>
>     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>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, 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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> Posted incampaign 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 92697-8000
> 949.824.3072 - office
> 949.824.0495 - fax
> rhasen at law.uci.edu  <mailto:rhasen at law.uci.edu>
> http://www.law.uci.edu/faculty/full-time/hasen/
> http://electionlawblog.org
>
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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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