Submitted by Brendan Fischer on
Wisconsin Governor Scott Walker’s campaign has asked the state Supreme Court to review the legal basis for the John Doe campaign finance probe looking at coordination between his campaign and third-party groups. And, a separate federal challenge to the investigation filed by Wisconsin Club for Growth will move forward, after the judge hearing the case denied a motion to dismiss it.
District Attorneys in five Wisconsin counties, from both political parties, have been investigating whether candidates -- including Walker’s campaign – coordinated with independent electoral groups like Wisconsin Club for Growth (WCFG) during Wisconsin’s contentious 2011 and 2012 recall elections. WCFG spent $9.1 million in undisclosed “dark money” during the recall elections, and groups it funded spent millions more.
A “John Doe” is similar to a grand jury investigation, but in front of a judge rather than a jury, and conducted under strict secrecy orders.
The first John Doe investigation into illegal campaigning in Walker's County Executive office closed last year and resulted in six criminal convictions for a variety of crimes including embezzlement, campaign finance violations and political corruption.
The latest John Doe began in August of 2012 but has been complicated in recent months by a slew of legal challenges.
Walker Asks WI Supreme Court to Intervene
On Friday, Walker’s lawyer, former U.S. Attorney Steven Biskupic, filed a petition asking the Wisconsin Supreme Court to bypass the Court of Appeals and resolve dueling interpretations of state campaign finance law, which could decide whether the investigation can move forward.
The essential question before the Court is how state election law treats coordination between political campaigns and groups running “issue ads” -- those thinly-veiled election messages that stop short of explicitly telling viewers to vote for or against a candidate.
In early January, the judge overseeing the John Doe probe, Judge Gregory Peterson, quashed subpoenas issued to WCFG, Citizens for a Strong America, and the Walker campaign on grounds that Wisconsin's statutes do not explicitly address coordination between campaigns and issue ad groups.
However, prosecutors argued that despite "issue ads" not being mentioned in Wisconsin's statutes, Wisconsin courts have previously held that a group can violate election law if their electoral issue ads are coordinated with candidates. (Notably, in federal elections, such coordination would be strictly prohibited.)
Allowing such coordination would open the door to even greater levels of political corruption, since independent groups running "issue ads" can accept unlimited, secret donations, whereas contributions to candidates are capped and must be disclosed. If a candidate and issue ad group are working together, a million-dollar, secret donation to a group like Wisconsin Club for Growth would be effectively the same as a direct contribution to the candidate, raising a serious risk of corruption and undermining the contribution caps -- and, allowing it all to pass without disclosure, in secret.
Two weeks after quashing the subpoenas, Judge Peterson stayed his own order, writing that the state's theory "is an arguable interpretation of the statutes" and asking that an appellate court resolve the dispute.
The Walker campaign and two other unnamed petitioners are seeking to bypass the appellate court and have the Wisconsin Supreme Court take up the case directly.
Conflict of Interest at Wisconsin Supreme Court?
At least some members of the Wisconsin Supreme Court have a potential conflict of interest in the case. Two of the groups under investigation in the probe, Wisconsin Club for Growth and Citizens for a Strong America, played a key role in electing the four justices in the conservative majority and have been among the top spenders on Wisconsin Supreme Court races in recent years.
According to data from the Wisconsin Democracy Campaign, Wisconsin Club for Growth spent at least $1,615,860 on the last four Supreme Court races. Citizens for a Strong America, which is entirely funded by Wisconsin Club for Growth, spent $836,000 supporting Justice David Prosser's reelection in 2011, which he won by just 7,000 votes; in that race, Citizens for a Strong America alone spent more than Prosser's own campaign.
Any ruling by the Wisconsin Supreme Court would directly affect the same groups that helped put four of the justices on the bench.
(Notably, an email (PDF p.37) later obtained through an open records request showed a former county coordinator for Prosser, Paul Behling, boasting to Governor Walker's office about his efforts to "get very creative with diverse State and National organizations" to get around contribution limits and support the Prosser campaign, noting that "Justice Prosser... is a pleasure to work with." Some have read the email as suggesting coordination between Prosser's campaign and independent groups -- the same issue under investigation in the John Doe.)
A justice who was not a beneficiary of WCFG or Citizens for a Strong America spending, Justice Ann Walsh Bradley, has already recused herself from another challenge to the John Doe on grounds that her son practices with one of the attorneys in the case. Her letter announcing the recusal, though, appeared to be a subtle call to other justices to join her in withdrawing from the case: despite her reasons for recusing herself having nothing to do with election spending, she quoted from the U.S. Supreme Court's landmark decision on judicial recusal, Caperton v. Massey, writing "The inquiry [requiring recusal] centers on the contribution's relative size in comparison to the total amount of money contributed to the campaign, the total amount spent in the election, and the apparent effect such contribution had on the outcome of the election."
“This court has been subject to extensive criticism for its recusal rules and practices,” Bradley wrote. “Weak recusal rules and lapses in recusal practices undermine the public trust and confidence in a fair and impartial judiciary.
The justices have not yet stated whether they will take the case.
Federal Challenge Moves Forward
Walker’s filing capped a week of new developments in the complicated list of John Doe challenges.
On Tuesday, federal Judge Rudolph Randa rejected a request from prosecutors to throw out a suit filed by WCFG director Eric O’Keefe. In February, O’Keefe’s Washington DC-based attorneys filed thousands of pages of documents with the court offering a lengthy rewrite of Wisconsin history and portraying the John Doe probe as partisan retaliation for O’Keefe and WCFG exercising their "free speech" rights in the form of $9.1 million in election spending.
Although federal courts typically will abstain from halting an ongoing state criminal prosecution conducted by state authorities under state law, Judge Randa held that Wisconsin’s unique John Doe proceeding is more akin to an investigation — not a prosecution – so the rules of abstention don’t apply. He also rejected claims that the defendants were subject to prosecutorial immunity.
The language of the decision suggests that at this stage of the proceedings, Judge Randa is sympathetic to O’Keefe’s claims.
“O‟Keefe plausibly alleges that he is being investigated solely because of his political ideology, with no particular eye towards the actual commencement of a criminal prosecution,” the judge wrote.
Judge Randa held that, for the purposes of O’Keefe’s federal challenge, it doesn’t necessarily matter whether a state court finds that WCFG's conduct violated Wisconsin law.
“Whatever the eventual state court ruling may be, it would not obviate the need for a federal court ruling on O‟Keefe‟s constitutional claims,” he wrote.
O'Keefe's Flimsy "Double Standard" Claims Not yet Adjudicated
The John Doe prosecutors -- who are being sued in the federal case -- have not yet presented evidence to rebut the extensive inaccuracies and misrepresentations in O'Keefe's filing, particularly the claim that Democrats and liberal groups engaged in conduct "materially identical" to the acts under investigation in the John Doe, which according to the complaint, allegedly shows that WCFG and other "targets of the investigation were selected based on political views and associations."
At this stage of proceedings, the judge must accept all of O'Keefe's allegations as true. Yet Judge Randa appeared to find the possibility of a prosecutorial double-standard compelling. “The underlying theory of this case is that O‟Keefe, along with other conservative groups, are being targeted for their political activism, whereas the 'coordination' activities of those on the opposite side of the political spectrum are ignored,” he wrote.
O’Keefe’s alleged examples of impropriety by liberal groups don't stand up to scrutiny. Many of the allegations did not violate Wisconsin law. Others were investigated and dismissed. Others lacked any documentation. CMD was one of the groups discussed in the complaint that had supposedly engaged in conduct “materially identical” to the alleged criminal activity under investigation in the John Doe – but those claims were entirely and demonstrably false.
In fact, the conservative Washington Times newspaper issued a full retraction, correction, and apology in February after it repeated the claims about CMD in O’Keefe’s complaint, and later discovered the facts.