[EL] my thoughts on the John Doe case

Thu Jul 16 10:50:26 PDT 2015

Amen, Brad. I also continue to wonder if there are any who believe (even if they in the hearts condone the tactics in this context) that in the absence of those tactics there would ever have been the ruling that non-express advocacy ads are beyond regulation and can be coordinated.  Without the shocking (but logically consistent) argument that the government can ban books, we may not have Citizens United.  Without pre-dawn John Doe raids, does the prosecution here ultimately prevail?

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  *  dinsmore.com
@KY_campaignlaw

-----Original Message-----
From: law-election-bounces at department-lists.uci.edu [mailto:law-election-bounces at department-lists.uci.edu] On Behalf Of Smith, Brad
Sent: Thursday, July 16, 2015 1:33 PM
To: Greenberg, Kevin
Cc: law-election at UCI.edu
Subject: Re: [EL] my thoughts on the John Doe case

Why can't any of you just say, "this is outrageous, and it shows how one can squelch speech without ever finding any wrongdoing. This is a real problem for free speech. It is good that this is stopped, both for this case and the future."?

By the way, I am chairman of another legal public interest group, the 1851 Center for Constitutional Law, that has taken on this problem repeatedly in Ohio in situations unrelated to elections or campaigns. We don't usually comment on it here because it is not relevant to this list. But while abuses in this area are common, they are (fortunately) still not the norm. And I the politicized context of this investigation, there is certainly reason to be particularly suspicious of the tactics used. And to be suspicious if the unwillingness to condemn those tactics, and to recognize the threat they pose to free speech.

Bradley Smith
Sent from my iPhone

On Jul 16, 2015, at 1:20 PM, "Greenberg, Kevin" <Kevin.Greenberg at flastergreenberg.com> wrote:

> Brad,
>
> I don't want to speak for Sam but I read his post and agreed with it entirely.
>
> And what I mean is that if the way it is portrayed is true, then it is in line with the kind of "abuses" that happen every day as part of ordinary law enforcement.   The fact that they may, or may not, be legal doesn't make them shameful and a needed cause for reform.
>
> I don't think any reformers agree with the straw man articles that real abuses, if they occur, are warranted because of political opinion.  That's the victim hood card that we are (ok, I am) challenging (remember, the Charleston shooting was because the victims were "Christian", right?).  And playing it makes the conservative substantive arguments seem weak.
>
> What would be chilling is that if these investigated persons get different treatment, pro or con, either in the investigation or at the Supreme Court or in subsequent litigation because they are wealthy, connected, conservatives.   And that's without looking at statuses requiring strict scrutiny such as race.
>
> Kevin
>
> Kevin Greenberg
> 215-279-9912
>
>
> On Jul 16, 2015, at 12:57 PM, Smith, Brad <BSmith at law.capital.edu<mailto:BSmith at law.capital.edu>> wrote:
>
> Our problem, Sam, is that for many, it seems to be less so here than in other cases. There is a sneaking suspicion that many people think, at least in this context, these were pretty darn good tactics.
>
> But I will take comfort in reading your post to mean you agree that the John Doe investigation was conducted in a matter that was totally out of line, and that will have the effect of stifling speech; and therefore it was good for the Court to rein it in, even if, in your view, they went too far in cutting it off completely. Is that a fair assessment?
>
>
> Bradley A. Smith
>
> Josiah H. Blackmore II/Shirley M. Nault
>
>   Professor of Law
>
> Capital University Law School
>
> 303 E. Broad St.
>
> Columbus, OH 43215
>
> 614.236.6317
>
> http://law.capital.edu/faculty/bios/bsmith.aspx
>
> ________________________________
> From:
> law-election-bounces at department-lists.uci.edu<mailto:law-election-boun
> ces at department-lists.uci.edu>
> [law-election-bounces at department-lists.uci.edu<mailto:law-election-bou
> nces at department-lists.uci.edu>] on behalf of Samuel Bagenstos
> [sambagen at umich.edu<mailto:sambagen at umich.edu>]
> Sent: Thursday, July 16, 2015 12:34 PM
> To: David Keating
> Cc: law-election at UCI.edu<mailto:law-election at UCI.edu>
> Subject: Re: [EL] my thoughts on the John Doe case
>
>
> The way we execute search warrants in this country is a scandal. I'm not sure why it's more so here than in a thousand other non-political cases.
>
> On Jul 16, 2015 12:28 PM, "David Keating" <dkeating at campaignfreedom.org<mailto:dkeating at campaignfreedom.org>> wrote:
> Unverified?  From the majority opinion:
>
> ¶28  On October 1, 2013, Reserve Judge Kluka authorized 29 subpoenas duces tecum to, among others, Unnamed Movants Nos. 1, 2, 3, 4, 5, and 8, based on an affidavit submitted to her by Investigator Stelter.  These subpoenas compelled production of documents evidencing the conduct of coordination among the subpoenaed parties and a candidate committee, particularly the interaction between Unnamed Movants Nos. 1 and 2.  That same day Reserve Judge Kluka authorized search warrants for the homes and offices of Unnamed Movants Nos. 6 and 7.  The search warrants were executed at approximately 6:00 a.m. on October 3, 2013, in pre-dawn, armed, paramilitary-style raids in which bright floodlights were used to illuminate the targets' homes.
>
> David
> _________________________________________________
> David Keating | President | Center for Competitive Politics
> 124 S. West Street, Suite 201 | Alexandria, VA 22314
> 703-894-6799<tel:703-894-6799> (direct) |
> 703-894-6800<tel:703-894-6800> | 703-894-6811<tel:703-894-6811> Fax
> www.campaignfreedom.org<http://www.campaignfreedom.org>
>
> From:
> law-election-bounces at department-lists.uci.edu<mailto:law-election-boun
> ces at department-lists.uci.edu>
> [mailto:law-election-bounces at department-lists.uci.edu<mailto:law-elect
> ion-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<mailto: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_l
> imits_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.]
> <image001.png><https://www.addtoany.com/share_save#url=http%3A%2F%2Fel
> ectionlawblog.org%2F%3Fp%3D74355&title=Analysis%20of%20Wisconsin%20Joh
> n%20Doe%20Ruling%3A%20Bad%20News%20for%20Campaign%20Finance%20Laws&des
> cription=> 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<tel:949.824.3072> - office
>
> 949.824.0495<tel: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
>
> _______________________________________________
> Law-election mailing list
> Law-election at department-lists.uci.edu<mailto:Law-election at department-l
> ists.uci.edu>
> http://department-lists.uci.edu/mailman/listinfo/law-election
> _______________________________________________
> Law-election mailing list
> Law-election at department-lists.uci.edu<mailto:Law-election at department-l
> ists.uci.edu>
> http://department-lists.uci.edu/mailman/listinfo/law-election
>
> <image001.png>
_______________________________________________
Law-election mailing list
Law-election at department-lists.uci.edu
http://department-lists.uci.edu/mailman/listinfo/law-election

________________________________

NOTICE: This electronic mail transmission from the law firm of Dinsmore & Shohl may constitute an attorney-client communication that is privileged at law. It is not intended for transmission to, or receipt by, any unauthorized persons. If you have received this electronic mail transmission in error, please delete it from your system without copying it, and notify the sender by reply e-mail, so that our address record can be corrected.