[EL] my thoughts on the John Doe case

Smith, Brad BSmith at law.capital.edu
Thu Jul 16 12:08:38 PDT 2015 

Not trolling any more than your are. After all, you put out the post that started this discussion (were you just trolling, you old rogue?), and I and others have been addressing why we consider this a problem, and you (and others) keep saying it is not. The answer seems to be, "what's one more abridgment of rights between friends, or at least political rivals."

So This is an honest question. Many of us who agree with the Wisconsin Supreme Court have a long history of speaking out against such behavior, and even litigating such cases in other contexts, so we're not in some faux outrage. We've really got a problem with this. So I really do want to know: can anyone on that side say it? You don't even have to mean it, really. You can just pay lip service to it. You can preface it with all kinds of disclaimers.

And you have to see how it looks to many of us who worry about the power of government intimidation to stifle free speech, that no one who favors regulating this type of political participation seems to be able to admit, even against these facts, that this is even a problem.

And for our lurking journalists, I do want to go back to 4 key points:
1. The 7th Circuit did not reject the Wisconsin Court's theory - it's quite clear from the language I quoted that it considered it an open question;
2. Judge Ziegler did not inappropriately reach some issue not raised by the case, as the language I quoted makes clear; but the warning of her concurrence should draw praise, not condemnation, from those who care about the issue of needlessly overbearing police tactics;
3. It is unfair to simply denounce a ruling as "partisan" because one disagrees with the results - something more should be demanded; and
4. There is no significant dispute about the tactics used in the investigation; the question some now seem to be raising is just how out of the norm they were, which seems only marginally relevant to the question of whether the court was correct to intervene, given that no one seems willing to defend those tactics.


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: Rick Hasen [rhasen at law.uci.edu]
Sent: Thursday, July 16, 2015 2:49 PM
To: Smith, Brad; Jonathan Adler
Cc: law-election at uci.edu
Subject: Re: [EL] my thoughts on the John Doe case

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<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>] on behalf of Rick Hasen [rhasen at law.uci.edu<mailto:rhasen at law.uci.edu>]
Sent: Thursday, July 16, 2015 2:14 PM
To: Jonathan Adler
Cc: law-election at uci.edu<mailto: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?



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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 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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401 E. Peltason Dr., Suite 1000
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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
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