[EL] my thoughts on the John Doe case

Thu Jul 16 09:33:10 PDT 2015

A point of clarification: the "raids" in this campaign finance
investigation have never been challenged. Former Walker aide Cindy Archer
recently filed a civil rights lawsuit connected to the "John Doe 1" probe,
over a search that preceded the recall elections or any allegations of
coordination. And her primary claim is one of retaliation.

On Thu, Jul 16, 2015 at 11:46 AM, Allen Dickerson <
adickerson at campaignfreedom.org> wrote:

> Rick,
>
>
>
> The manner in which this investigation was conducted, including the
> early-morning raids the Court alludes to, is the subject of a federal civil
> rights lawsuit. While I’m more inclined to trust the factual findings of
> the Court than the “full verification” of any particular press outfit, I
> also can’t imagine folks would make those stories up and then file a
> lawsuit premised upon them.
>
>
>
> Regardless of where one comes out on the coordination issue, these raids
> should have been met with universal condemnation. If you want to tie that
> back to overmilitarization of the police generally, fine. But the marked
> silence from the reform community on this point is the single clearest
> example of how poisonous the national debate has become.
>
>
>
> As you know, I’ve publicly stated that policy disagreements are no grounds
> for abusing the FOIA process to get a professors’ emails.
> http://electionlawblog.org/?p=60748. You might consider whether policy
> disagreements are any grounds for passing over these raids in silence, or
> questioning the targets’ veracity without any countervailing evidence.
>
>
>
> Allen
>
>
>
>
>
> *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 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.*]
>
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> 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 92697-8000
>
> 949.824.3072 - office
>
> 949.824.0495 - fax
>
> rhasen at law.uci.edu
>
> http://www.law.uci.edu/faculty/full-time/hasen/
>
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PRWatch.org <http://prwatch.org/>, SourceWatch.org <http://sourcewatch.org/>
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