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.