[EL] my thoughts on the John Doe case

Thu Jul 16 11:19:02 PDT 2015

If that is the full extent to which the prosecutor is disputing the claims,
I think the issue is pretty much settled.
On Jul 16, 2015 9:29 AM, "Rick Hasen" <rhasen at law.uci.edu> wrote:

>  Beautifully put.  Here is a statement from the prosecutor in the case:
>
>   Statement from Prosecutor in John Doe Case: Facts of Raids are
> Disputed, Case Will Hurt Wisconsin Voters
> <http://electionlawblog.org/?p=74378>
> Posted on July 16, 2015 10:27 am <http://electionlawblog.org/?p=74378> by Rick
> Hasen <http://electionlawblog.org/?author=3>
>
> Here’s the statement:
>
> From: *Francis Schmitz*
> Date: Thu, Jul 16, 2015 at 1:17 PM
> Subject: Statement regarding Wisconsin Supreme court ruling
> To:
>
> I am disappointed with today’s ruling from the Wisconsin Supreme Court and
> respectfully disagree with the conclusions drawn by the majority which end
> the investigation. The decision represents a loss for all of the citizens
> of Wisconsin — independents, Democrats and Republicans alike.  It defies
> common sense that a Wisconsin resident of average means who gives $25 to a
> campaign has his or her name publicly reported under the law but, according
> to this decision, someone who gives, for example*,* $100,000 to a group
> which closely coordinates with the same campaign can remain anonymous.
>   The United States Supreme Court has fittingly characterized such
> donations as “disguised contributions” to the candidate.   As stated in
> Wisconsin Statute 11.001, “[w]hen the true source of support or extent of
> support is not fully disclosed, or when a candidate becomes overly
> dependent upon large private contributors, the democratic process is
> subjected to a potential corrupting influence.”
>
>
>
> Particular justices assert as fact many allegations that I specifically
> denied in my response materials.  There has been no fact-finding hearing
> conducted at any level establishing, for example, that search warrants were
> executed unprofessionally or that persons were denied an opportunity to
> contact their attorneys.  All of these search warrants were audio-recorded
> and it is wrong for the court to accept as true the information alleged by
> some of the Unnamed Movants and their media outlets.
>
>
>
> It is also unfortunate that the citizens of Wisconsin will not have the
> benefit of a public discussion of the facts and the law because the court
> decided not to allow oral argument.    Consequently, I was denied the
> opportunity to appropriately respond to the campaign of misinformation
> about how and why the investigation was conducted.
>
>  [image: Share]
> <https://www.addtoany.com/share_save#url=http%3A%2F%2Felectionlawblog.org%2F%3Fp%3D74378&title=Statement%20from%20Prosecutor%20in%20John%20Doe%20Case%3A%20Facts%20of%20Raids%20are%20Disputed%2C%20Case%20Will%20Hurt%20Wisconsin%20Voters&description=>
>   Posted in Uncategorized <http://electionlawblog.org/?cat=1>
>
>
> On 7/16/15 10:20 AM, Greenberg, Kevin 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 Greenberg215-279-9912
>
>
> On Jul 16, 2015, at 12:57 PM, Smith, Brad <BSmith at law.capital.edu<mailto:BSmith at law.capital.edu> <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-bounces at department-lists.uci.edu> <law-election-bounces at department-lists.uci.edu> [law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu> <law-election-bounces at department-lists.uci.edu>] on behalf of Samuel Bagenstos [sambagen at umich.edu<mailto:sambagen at umich.edu> <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> <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> <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> <703-894-6799> (direct) | 703-894-6800<tel:703-894-6800> <703-894-6800> | 703-894-6811<tel:703-894-6811> <703-894-6811> Faxwww.campaignfreedom.org<http://www.campaignfreedom.org> <http://www.campaignfreedom.org>
>
> From: law-election-bounces at department-lists.uci.edu<mailto:law-election-bounces at department-lists.uci.edu> <law-election-bounces at department-lists.uci.edu> [mailto:law-election-bounces at department-lists.uci.edu <law-election-bounces at department-lists.uci.edu><mailto:law-election-bounces at department-lists.uci.edu> <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<mailto:law-election at UCI.edu> <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> <http://electionlawblog.org/?p=74355>
> Posted on July 16, 2015 7:36 am<http://electionlawblog.org/?p=74355> <http://electionlawblog.org/?p=74355> by Rick Hasen<http://electionlawblog.org/?author=3> <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> <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> <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&
> amp;region=top-news&WT.nav=top-news> <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> <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> <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> <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> <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> <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/> <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> <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-do
> e-disclosure-1402265159> <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> <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> <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%2Felectionlawblog.org%2F%3Fp%3D74355&title=Analysis%20of%20Wisconsin%20John%20Doe%20Ruling%3A%20Bad%20News%20for%20Campaign%20Finance%20Laws&description=> <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> <http://electionlawblog.org/?cat=10>, chicanery<http://electionlawblog.org/?cat=12> <http://electionlawblog.org/?cat=12>
>
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>
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>
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