[EL] my thoughts on the John Doe case

Thu Jul 16 10:42:28 PDT 2015

It’s not exactly apples-to-oranges, but this Washington Post article on a federal appeals court’s ruling relating to raids on barber shops in Orlando would seem to suggest some degree of concern is raised when SWAT teams are used on “white collar” matters (I’m just going to assume Rick means non-violent or essentially regulatory in nature when he uses that term, a reasonable use by him I think): http://www.washingtonpost.com/news/the-watch/wp/2014/09/19/federal-appeals-court-stop-using-swat-style-raids-for-regulatory-inspections/

I do find it fascinating that following a year in which the use of excessive police force has been toward the top of the national policy agenda (at least for many), the reform/left seems to be utterly untroubled by the idea of SWAT-style tactics used against those who are in no way, shape, or form accused of violent crimes, and in cases where a simple warrant executed with minimal force (or threat of force) should be sufficient to obtain the evidence sought, and who’s distinguishing characteristic seems to be a willingness to advocate for candidates and causes the reform/left community find troublesome.

Sean Parnell

President, Impact Policy Management, LLC

571-289-1374 (c)

sean at impactpolicymanagement.com

Alexandria, Virginia

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 12:12 PM
To: Lycan, Eric; law-election at UCI.edu
Subject: Re: [EL] my thoughts on the John Doe case

I'm saying that I want a full picture of both what happened and how that compares to ordinary police tactics in similar white collar investigations.

On 7/16/15 9:06 AM, Lycan, Eric wrote:

Are you saying that you approve of the tactics?  I understood that you simply do not believe they occurred that way, but if you are saying now that they would be justified that is another thing entirely.  I can tell you for certain that within the campaign finance context, investigations of potential illegal activity do not constitute armed incursions and seizure of family photos.  Outside the campaign finance context, the manner of service of a search warrant is dictated by the risk to law enforcement.  I think the concurrence does an adequate job in its discussion of this.  What may be appropriate in apprehending violent criminals or searching drug dens in not necessary or appropriate in this context. While many on the political left may view all conservatives as gun-toting militia members, it is unfortunate that we cannot even agree that such tactics in this context (acknowledging your skepticism – IF they occurred) are completely out of line.  

And yes, if one is going to engage in civil disobedience to such a gag order, one would naturally gravitate toward sympathetic media.  Whether one is suspicious of the objectiveness of the Wall Street Journal editorial page, it should not surprise that someone whose home had been raided would choose them as the vehicle through which to violate the gag order.  None of which reduces the irony of dismissing the concerns of government abuse in a secret John Doe investigation on the basis that there is no transparency.

I ask again: 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 
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@KY_campaignlaw

From: Rick Hasen [mailto:rhasen at law.uci.edu] 
Sent: Thursday, July 16, 2015 11:51 AM
To: Lycan, Eric; law-election at UCI.edu
Subject: Re: [EL] my thoughts on the John Doe case

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  <mailto:eric.lycan at dinsmore.com> eric.lycan at dinsmore.com  •   <http://www.dinsmore.com> 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

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

Posted on  <http://electionlawblog.org/?p=74355> July 16, 2015 7:36 am by  <http://electionlawblog.org/?author=3> Rick Hasen

 <http://www.wicourts.gov/sc/opinion/DisplayDocument.html?content=html&seqNo=144526> Today’s lengthy and contentious 4-2 ruling 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  <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> my earlier Slate piece, as well as early coverage of today’s ruling in the  <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> NY Times,  <http://www.jsonline.com/news/statepolitics/wisconsin-supreme-court-ends-john-doe-probe-into-scott-walkers-campaign-b99535414z1-315784501.html> Milwaukee Journal-Sentinel, and <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> Wisconsin State Journal. 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  <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> my earlier Slate piece.)

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  <http://www.jsonline.com/news/opinion/open-john-doe-investigation-of-gov-scott-walker-to-the-public-b99491741z1-302162641.html> editorialized about the selling of this story: “A breathless article  <http://www.nationalreview.com/article/417155/wisconsins-shame-i-thought-it-was-home-invasion-david-french> in the conservative National Review. An equally breathless report  <http://www.foxnews.com/transcript/2015/04/24/scott-walker-supporters-claim-police-raided-homes-over-politics/> by Megyn Kelly on Fox News.  <https://www.youtube.com/watch?v=cuuGYGWoaC0> Tart comments from Gov. Scott Walker 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  <http://www.wsj.com/articles/another-john-doe-disclosure-1402265159> The Wall Street Journal’s editorial page (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 <http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1948313>  which generally do not stand up to scrutiny.

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 <http://electionlawblog.org/?p=74299>  unsurprising partisan holding 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  <http://electionlawblog.org/?cat=10> campaign finance,  <http://electionlawblog.org/?cat=12> chicanery

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Rick Hasen
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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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