Top Six Facts in the Walker Dark Money Criminal Probe

In the wake of a federal court's recent ruling halting a state criminal investigation into spending during the 2011 and 2012 recall elections for Wisconsin Governor Scott Walker and other candidates, misinformation about the investigation and court rulings has run rampant.

In his May 6 decision, federal District Court Judge Rudolph Randa blocked an ongoing John Doe criminal probe into allegedly illegal coordination between nonprofit groups like Wisconsin Club for Growth (WCFG), which spent $9.1 million on electoral ads during Wisconsin's recall elections, and the recall campaigns of Governor Scott Walker and state senators. John Doe investigations are similar to grand jury investigations, and WCFG asked the federal court to stop the probe, alleging it violated their "free speech" rights.

Judge Randa, who was appointed by George H.W. Bush, deemed that the mere omission of terms like "vote for" or "vote against" in Wisconsin Club for Growth's ads put them beyond the reach of long-standing Wisconsin law, thereby greenlighting coordination between candidates and dark money nonprofits. He also ordered prosecutors to destroy all evidence gathered in the investigation, an extraordinary edict in a criminal case made even more astounding by the fact that it came in the context of a preliminary injunction. (The Seventh Circuit has blocked this part of his ruling).

Here are six things you might not know from reading Judge Randa's decision and some of the surrounding media coverage.

1) The John Doe Probe Is Led by Both Republicans and Democrats

The Wall Street Journal described the John Doe investigation as a "four-year effort by Democratic prosecutors to criminalize political speech in Wisconsin." The American Spectator called it the "Wisconsin Dems' 'John Doe' investigations." George Will, writing in the Washington Post, portrayed the probe as "a partisan abuse of law enforcement that was masquerading as political hygiene."

Contrary to these distorted portrayals of the John Doe investigation as a politically-motivated "witch hunt" by Democrats against Republicans, the criminal probe is in fact led by Republicans.

The investigation is officially a five-county effort, involving five District Attorneys, from both the Republican and Democratic parties. A 2007 law pushed by Republicans requires that campaign finance violations be prosecuted in the counties where defendants reside, and prosecutors across the state have agreed to participate, finding that the investigation has both legal and factual merit. Would Republican prosecutors have agreed to participate in a criminal investigation into Republican leaders that was legally baseless or motivated by anti-Republican sentiment?

The investigation was unanimously approved by Wisconsin's Government Accountability Board (GAB), which consists of a bipartisan panel of retired judges appointed by the Governor and confirmed by the Senate. Because the GAB does not have authority to prosecute criminal violations, it turned the statewide investigation over to the county district attorneys.

Wisconsin's Republican Attorney General, J.B. Van Hollen, was asked to lead the probe. In declining the offer, Van Hollen neither rejected the legal premise of the investigation nor criticized it as a politically-motivated witch hunt -- he instead cited a conflict of interest.

The Special Prosecutor leading the probe, Francis Schmitz, voted for Scott Walker in 2012, was on George W. Bush's shortlist to be named the chief federal prosecutor in the state as U.S. attorney, and has been a member of the Republican Party. Schmitz, who is the named defendant in WCFG's federal challenge to the probe, submitted a sworn affidavit to the federal court stating that he has no animus towards Walker or other Republicans, and in fact generally supports Walker's policies.

The Milwaukee District Attorney who first uncovered the evidence that kicked-off the investigation, John Chisholm, is a Democrat, but contrary to the "selective prosecution" allegations, his office has pursued campaign finance charges against multiple Democrats in recent years. In fact, Chisholm's office levied a $20,000 fine for campaign finance violations against Walker's opponent in the 2012 recall election, Tom Barrett. Allegations that Chisholm and other prosecutors ignored campaign finance violations by Democrats or liberal groups are false.

Wisconsin Club for Growth and right-wing media would have us believe the entire investigation was a legally baseless, politically-motivated witch hunt. The facts tell a different story, one of serious concern by both Republican and Democratic law enforcement officials that the recall elections involved illegal activities in violation of Wisconsin laws.

2) Wisconsin Courts Have Long Interpreted Wisconsin Law as Banning "Issue Ad" Coordination

The legal theory that the bipartisan group of John Doe prosecutors were pursuing was one of illegal coordination between political campaigns and third-party nonprofit groups that run sham "issue ads," those thinly-veiled election messages that stop short of expressly telling viewers to vote for or against a candidate. Prosecutors argued that if an ad is coordinated with a candidate, it is no longer "independent" and should be counted as a contribution, since it would have substantial value to a candidate.

Judge Randa deemed that issue ad coordination is "not subject to [Wisconsin] regulations and statutes" -- and therefore the John Doe probe was legally baseless (a claim gleefully echoed in right-wing media). Wisconsin campaign finance law only covers communications that include an express call to vote for or against a candidate, he held.

Yet in doing so, Judge Randa unilaterally disregarded years of precedent and practice in Wisconsin.

Since at least 1999 Wisconsin election laws have been interpreted as barring issue ad coordination with candidates, although the statutes don't specifically mention issue ads. In Coalition for Voter Participation v. Elections Board, the Wisconsin Court of Appeals expressly held that Wisconsin law can count issue ad "expenditures that are 'coordinated' with, or made 'in cooperation with or with the consent of a candidate'... as campaign contributions."

That decision green-lighted a state elections board investigation into illegal coordination between Jon Wilcox's 1997 campaign for Supreme Court and an independent group that sent issue ad postcards to voters in the final days of the campaign. Affirming a decision from the Dane County Circuit Court, the appellate court rejected claims that Wisconsin law only covers communications that expressly advocate for the election or defeat of a candidate.

"If the mailing and the message were done in consultation with or coordinated with the Justice Wilcox campaign, the [content of the message] is immaterial," the state appellate court found.

Judge Randa ignored this precedent.

The 1999 probe into issue ad coordination resulted in a high-profile settlement where Wilcox's campaign manager Mark Block was fined $15,000 and barred from politics for three years. (Block later went on to lead the Wisconsin chapter of Americans for Prosperity and managed Herman Cain's 2012 presidential run, where he appeared in the quirky "smoking man" campaign ad and was the subject of IRS complaints alleging he funneled charitable donations to Cain's campaign).

Wilcox won his election, and as a sitting Wisconsin Supreme Court Justice, he expressed remorse for the fact that his campaign coordinated with an issue ad group. Justice Wilcox did not claim that the enforcement action was legally unjustified or a violation of free speech. In fact, despite the elections board finding that Wilcox had no personal knowledge of the illegal issue ad coordination, he agreed to personally pay a $10,000 fine, stating that he was ultimately responsible for the conduct of his campaign staff.

3) The State Elections Board Has Long Advised the Public That Issue Ad Coordination Is Prohibited

The state elections board, which under Wisconsin law is tasked with interpreting and applying the state's campaign finance statutes, has long advised candidates and the public that coordinated issue ads may be construed as a contribution under Wisconsin law. See for example, this 2002 advisory opinion that was reaffirmed in 2008, just three years before WCFG began running the ads in question in the criminal investigation.

"[S]peech which does not expressly advocate the election or defeat of a clearly identified candidate may, nevertheless, be subject to campaign finance regulation," the GAB wrote in the advisory opinion.

Describing state and federal campaign finance precedent, the GAB wrote that courts will "merge express advocacy with issue advocacy if 'coordination' between the spender and the campaign is sufficient that the potential for a quid pro quo is immediate and apparent and, therefore, that the expenditure ought to be treated as a contribution."

Given the $9.1 million WCFG spent on Wisconsin's recall elections (and the millions more it funneled to other groups), it is difficult to believe they didn't know about the Coalition for Voter Participation precedent. And, it is difficult to believe that WCFG (or its lawyers) had not seen the GAB's advisory opinion on coordination, which was posted on the GAB website. Groups spending millions of dollars on elections have an obligation to know and comply with the law.

If Wisconsin Club for Growth or Walker advisor R.J. Johnson were unsure about their responsibilities under the law -- despite this publicly-available information -- they could have requested an advisory opinion from the GAB. Yet instead, WCFG apparently went ahead and coordinated, and then claimed that the state's enforcement of its well-defined rules amounted to a violation of WCFG's free speech rights.

4) The Ruling Involves a Federal Judge Thwarting State Proceedings on the Scope of State Law

When Judge Randa handed down his decision creating his novel interpretation of Wisconsin's statutes as they apply to issue ads, proceedings on the scope of Wisconsin campaign finance law were pending in state court. The Milwaukee Journal Sentinel editorial board described the ruling as "a stunning use of federal judicial power."

In January, the Wisconsin judge who had recently been given oversight of the John Doe proceedings, Judge Gregory Peterson, sided with WCFG's narrow interpretation of the law and quashed subpoenas issued to WCFG, Citizens for a Strong America, and the Walker campaign on grounds that Wisconsin statutes do not explicitly address issue ad coordination (while acknowledging that the Coalition for Voter Participation precedent gave him "some pause"). However, two weeks later, Judge Peterson stayed his own order, writing that the state's theory of issue ad coordination "is an arguable interpretation of the statutes" and asking that an appellate court resolve the dispute.

As a result, for months a case has been pending before the Wisconsin Court of Appeals to reconsider the question of whether issue ads are subject to Wisconsin statutes. Another request is before the Wisconsin Supreme Court to take the case directly and settle the dueling interpretations of Wisconsin law.

Usually, under the judicial doctrines of comity and federalism, federal courts defer to state courts to interpret state statutes, and will abstain from interfering with state court proceedings interpreting state law.

But rather than letting Wisconsin courts resolve their own interpretation of Wisconsin statutes, or deferring to earlier state court decisions, federal Judge Randa intervened, and declared that Wisconsin statutes don't ban coordination between issue ad groups and candidates.

5) The U.S. Supreme Court Never Limited Regulation of Coordination to Ads that Say "Vote for" or "Vote against"

Judge Randa not only deemed that Wisconsin statutes do not bar coordination between candidates and issue ad groups, but asserted that even if they did, the state laws would be unconstitutional.

Citing the U.S. Supreme Court's recent decision in McCutcheon v. FEC (which had nothing to do with issue ads), Randa held that issue ads can be "viewed only one way, and that is as protected First Amendment speech."

"Only limited intrusions into the First Amendment are permitted to advance the government‘s narrow interest in preventing quid pro quo corruption and then only as it relates to express advocacy speech," not issue advocacy, Randa claimed, adding "Coordination does not add the threat of quid pro quo corruption that accompanies express advocacy speech."

This flies in the face of U.S. Supreme Court precedent, although press reports on Randa's ruling incorrectly claim otherwise.

For example, in 2003 the U.S. Supreme Court explicitly upheld the McCain-Feingold law's prohibition on coordination between candidates and groups airing issue ads near an election, which are known as "electioneering communications."

The Court in McConnell v. FEC held:

"there is no reason why Congress may not treat coordinated disbursements for electioneering communications (i.e. issue ads run near an election) in the same way it treats all other coordinated expenditures."

6) Ruling Opens Door to Massive Political Corruption

Under the reasoning in Judge Randa's May 6 ruling, political candidates can coordinate freely with dark money electoral groups. If upheld, the decision would open the door to new levels of political corruption and secret money in Wisconsin elections.

"A candidate‘s coordination with and approval of issue advocacy speech, along with the fact that the speech may benefit his or her campaign because the position taken on the issues coincides with his or her own, does not rise to the level of favors for cash," Randa wrote.

Permitting coordination between politicians and "issue ad" groups, though, would allow politicians to bypass candidate contribution and disclosure limits, giving elected officials free reign to solicit unlimited, secret donations -- thereby opening the door to political corruption. Plus, the reason that groups running issue ads often get around the regulations that apply to PACs is because they have a sliver of plausible deniability that their communications are about "issues" rather than elections. Once a group running "issue ads" is coordinating with a candidate for public office, that plausible deniability falls away.

Under Judge Randa's reasoning, Scott Walker could solicit a million-dollar, secret donation for Wisconsin Club for Growth, and tell the group how to spend it, and it would all be legal, as long as the ads run didn't expressly say "vote for" or "vote against." The donation to the dark money group would be effectively the same as a donation to the candidate, undermining Wisconsin's candidate contribution limits, and raising the same concerns about corruption and undue influence as a million-dollar check directly to Walker.

And, because it could all happen in secret, the public would not be able to discern whether the donor later receives special treatment. Under Randa’s ruling, the citizens of Wisconsin would have no idea who the politician owes his or her office to, and could not trace whether an elected official rewards secret donors with legislation or official acts or favors.

Read more of CMD's reporting about the Walker dark money criminal probe here.