[EL] my thoughts on the John Doe case
Rick Hasen
rhasen at law.uci.edu
Thu Jul 16 11:49:11 PDT 2015
And I think I'm done feeding the trolls Brad. Have a nice day.
On 7/16/15 11:44 AM, Smith, Brad wrote:
> So you would disagree with the logic of United States v. Sullivan, in
> which libeled defendants were subject to the same standard as everyone
> else, but Court held that need to protect first amendment rights were
> important enough to apply different standard?
>
> And you would not agree that a particular danger of campaign finance
> restrictions is that they are open to such partisan abuse?
>
> And you will not condemn these tactics because other people have
> suffered the same fate?
>
> And you will not agree that government abuse of power is reason for
> the courts to intervene?
>
> Again, can just one person who opposes the substantive ruling of the
> Wisconsin Surpreme Court on the standard for coordinated speech simply
> 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."?
>
> I'm becoming pretty sure that the answer is no. And I think the answer
> is no because they consider limiting political expenditures to be more
> important than preventing such abuse, they refuse to admit any cost to
> such laws, and they fear that any concession that campaign finance
> laws can be abused will weaken support for those laws.
>
> That's what I think.
>
> /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
> [law-election-bounces at department-lists.uci.edu] on behalf of Rick
> Hasen [rhasen at law.uci.edu]
> *Sent:* Thursday, July 16, 2015 2:14 PM
> *To:* Jonathan Adler
> *Cc:* law-election at uci.edu
> *Subject:* Re: [EL] my thoughts on the John Doe case
>
> Kevin hits it on the head. If it is proven (and it has not been to my
> satisfaction) that the targets of the investigation were singled out
> for worse treatment, then I would absolutely condemn it. If it turns
> out they were subject to the usual treatment, and the usual treatment
> is very bad, then I would condemn the usual treatment, including (but
> not especially) its application to this case, and call on others to
> work to get the bad usual treatment changed for everyone.
>
>
>
> On 7/16/15 11:06 AM, Jonathan Adler wrote:
>>
>> I will stipulate that police are over-aggressive in their use of
>> force in many contexts, and am long on recprd on that point (as are
>> many libertarians). So, with that stipulated to, will Rick defend the
>> use of these tactics here? Saying the police commit similar abuses
>> elsewhere seems like a dodge.
>>
>> JHA
>>
>> On Jul 16, 2015 7:51 AM, "Rick Hasen" <rhasen at law.uci.edu
>> <mailto:rhasen at law.uci.edu>> wrote:
>>
>> 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>
>>> [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 <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 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®ion=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./]
>>>
>>> Share
>>> <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 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 <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
>>>
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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 <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
>>
>>
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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
--
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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