Tag Archives: coordination

Scalia’s death increases odds for John Doe appeal

The death of Justice Antonin Scalia increases the chances the decision in John Doe 2 may reach the U.S. Supreme Court.

The Wisconsin high court’s decision halted the investigation into allegations that Scott Walker illegally coordinated with outside groups during the recall elections of 2011 and 2012. The court held that the First Amendment forbids the state from banning coordination between candidates and issue advocacy groups, even though the U.S. Supreme Court never has reach any such ruling.

There are legal limits on donations to candidates, but contributions to groups that indirectly support specific candidates without naming them can raise unlimited sums of money from anonymous donors. That means in Wisconsin candidates have limitless dollars at their personal disposal — dollars that cannot be traced.

Campaign limits to candidates are intended to rein in the corrupting effect of money in politics. Allowing coordination between outside groups, more commonly known as “dark money” groups, and candidates defeats the purpose of limits on campaigns.

If the district attorneys fighting back against this John Doe decision were concerned that appealing to the U.S. Supreme Court might backfire, because a majority might uphold the Wisconsin Supreme Court decision, they can put that fear to rest.

Scalia represented a problem for the district attorneys and for the liberal justices on the Court. The court now has a 4–4 split between conservative and liberal justices. The four liberal justices have consistently voted in favor of campaign finance regulations and they now essentially hold veto power.

In his concurring opinion in the Citizens United case of 2010, Scalia made a First Amendment argument that echoes that of the John Doe opponents. He wrote: “The individual person’s right to speak includes the right to speak in association with other individual persons. …The Amendment is written in terms of ‘speech,’ not speakers. Its text offers no foothold for excluding any category of speaker, from single individuals to partnerships of individuals, to unincorporated associations of individuals, to incorporated associations of individuals.”

But Scalia’s argument here is only about corporations and associations having free speech rights. It’s not about candidates being allowed to coordinate with issue advocacy groups.

Indeed, Justice Anthony Kennedy, writing the majority opinion in Citizens United, which Scalia signed on to, made this distinction: “By definition, an independent expenditure is political speech presented to the electorate that is not coordinated with a candidate.”

It is precisely that definition the Wisconsin Supreme Court erased in its John Doe decision.

Matt Rothschild is the executive director of the Wisconsin Democracy Campaign.

Conservative Supreme Court justices fire John Doe II prosecutor

The Wisconsin Supreme Court, by a vote of 4-1, today rejected a request from John Doe prosecutor Francis Schmitz to reconsider its July decision that shut down a secret investigation into alleged coordination between electioneering groups and Republican Gov. Scott Walker’s campaign during the 2011 and 2012 recall elections.

What’s more, the Court dismissed Schmitz, effective immediately, which may adversely affect any ability to appeal the case to the U.S. Supreme Court.

Both rulings were met with a scathing dissent by Justice Shirley Abrahamson, who wrote: “What a mess this Court has wrought!”

The Court, with Abrahamson’s assent, did issue a stay, however, on its previous order that all documents in the John Doe II case need to be destroyed. Instead, it ordered those documents to be turned over to the Court itself.

The John Doe probe was launched by Milwaukee County District Attorney John Chisholm in 2012 with help from Schmitz, other county district attorneys, and the state Government Accountability Board. The investigation looked at collaboration between Walker’s campaign and several conservative groups that ran ads, including the Wisconsin Club for Growth and Wisconsin Manufacturers & Commerce, during the recalls.

Both of the state Supreme Court’s rulings in the case in July and today were rendered by the seven-member court’s conservative majority – Chief Justice Pat Roggensack, and Justices David Prosser, Annette Ziegler and Michael Gableman.

On the merits of Schmitz’s request for reconsideration of the July decision, which legalized coordination between candidates and issue advocacy groups, the four conservative justices on the Court concluded that the prosecutor would suffer no immediate harm if they upheld their decision. And they also said that his argument that the John Doe should continue because there was evidence of coordination not only with issue advocacy groups but also with express advocacy groups (groups that say “vote for” or “vote against” a candidate) was invalid because he didn’t raise it earlier.

Abrahamson excoriated the Court for this conclusion, on two grounds.

First, even on the question of issue advocacy coordination itself, the State Supreme Court should have reconsidered its “misguided” decision in light of U.S Supreme Court precedents and “a recent decision of the United States Court of Appeals for the Third Circuit that is contrary to the July 16, 2015 majority opinion,” she wrote.

Second, on the question of express advocacy coordination, Abrahamson said the majority opinion had reached an “ erroneous conclusion that the Special Prosecutor never presented evidence of illegally coordinated express advocacy to the John Doe Judge.”In fact, wrote, Abrahamson, “According to the record, evidence of coordinated express advocacy on which the Special Prosecutor relies was presented both to the John Doe Judge and to this court. The legal arguments and evidence the Special Prosecutor presented to the John Doe Judge and to this court provide ‘reason to believe’ a crime was committed by coordinated express advocacy. Accordingly, reconsideration should be granted and the investigation into coordinated express advocacy should continue.”

On the issue of whether Schmitz was appointed in a valid manner in the first place, Abrahamson had some fun pointing out the inconsistencies of her colleagues. The majority opinion issued by Justice Michael Gableman in July affirmed that Schmitz was lawfully appointed. The concurring opinion by Justice David Prosser took the opposing view. “By joining both Justice Gableman’s majority opinion and Justice Prosser’s concurrence, four justices created at least two sets of votes that logically do not align: The four justices held that the Special Prosecutor’s appointment was simultaneously valid and invalid.” For her part, Abrahamson said that Gableman had it right the first time.

The Court’s dismissal of Schmitz provoked Abrahamson’s ire.

“The prosecution and State are left totally unrepresented hereafter,” she wrote. The majority suggested that local district attorneys might petition the Court to intervene but taking on such a complex case would be costly and time consuming,” Abrahamson noted.

She noted that the dismissal of the Special Prosecutor could hamper any effort to appeal the July decision to the U.S. Supreme Court, which Schmitz has been considering. “This ruling has the potential to create problems with respect to who may act on behalf of the prosecution in this court or elsewhere going forward,” she wrote.

Even the majority alluded to this possibility, while denying any intent: “Our decision to terminate Attorney Schmitz’s authority is not meant to interfere with the ability of the prosecution team to seek Supreme Court review.”

Abrahamson also objected to the Court’s requirement that Schmitz execute some “limited tasks” that the majority assigned to him, even though it canned him as prosecutor.

Those “limited tasks,” most to be completed within 30 days, include:

the returning of computer hardware and other personal property to their rightful owners;

the turning over of all documents and electronic data in the case, under seal, to the Wisconsin Supreme Court;

supplying a written index to those documents;

getting statements from all members, past and present, of the prosecution team and others who had access to these documents that they no longer possess copies of them;

providing written notices to all individuals and organizations whose documents or electronic data were obtained by the prosecution.

Abrahamson called this an “unfunded mandate” and wondered whether Schmitz would have to do this work for free. The Court “assigns the Special Prosecutor new tasks and new deadlines without providing the Special Prosecutor (a private practitioner) any compensation or assistance.”

Lastly, Abrahamson objected strongly to the secrecy that the State Supreme Court has imposed on this case, sealing one filing after another. “The general rule is that court filings are presumptively open for public inspection. . . . In the face of virtually total secrecy of filings since July 16, 2015, the public cannot understand the basis for the four justices’ decisions. And she quoted a U.S. Supreme Court precedent on the subject of secret court proceedings: “The crucial prophylactic aspects of the administration of justice cannot function in the dark; no community catharsis can occur if justice is ‘done in a corner [or] in any covert manner.’ ”

As she put it: “Why the secrecy?

Matt Rothschild is executive director of the Wisconsin Democracy Campaign.

John Doe prosecutor vows to fight on

John Doe II special prosecutor Francis Schmitz issued the following statement today:

“I am disappointed with the decision issued today and if I have the resources, intend to pursue an appeal before the U.S. Supreme Court.  I continue to believe that the investigation was justified. The voters of Wisconsin have a right to know the identity of large donors, corporate and individual, which coordinate with campaign committees.

The miscalculation I made in this investigation was underestimating the power and influence special interest groups have in Wisconsin politics.  

My career in the military and as a federal prosecutor fighting violent criminals and terrorists did not fully prepare me for the tactics employed by these special interest groups.  When sued in federal court for violating their “civil rights,” I, along other members of the investigative team, were vindicated by the U.S Court of Appeals for the Seventh Circuit.  

I intend to continue to pursue what I believe is the right course for those citizens of Wisconsin who do not have the financial resources to influence elections.”