Tag Archives: issue advocacy

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.


Analysis: Repeal of John Doe law makes prosecution of political corruption more difficult

A new Wisconsin law limiting secret John Doe probes doesn’t mean prosecutors’ days of pursuing political corruption are over. But their remaining tools have limitations that could make that task more difficult, especially in complex cases, legal experts say.

Prosecutors and investigators will have to turn to old-fashioned detective work or the state’s little-used grand jury procedure to build their cases, presenting problems for overworked district attorneys who may not have the time to dig through misconduct allegations outside of the John Doe process, they say.

“You don’t have a cop bringing in the case on a platter to you,” said Ray Dall’Osto, a Milwaukee defense attorney who described himself as leaning Democratic. “There’s going to be a tendency that these DAs are focused on immediate issues, like crimes of violence. The DAs are going to have to be more creative.”

Wisconsin is the only state with John Doe proceedings. They’re similar to grand jury proceedings. Prosecutors can present evidence in secret and compel witnesses to testify in secret before a judge.

Unlike a grand jury proceeding, where a prosecutor controls what he wants the jury to hear before the panel decides whether to indict, John Does are more like depositions, with the judge ultimately deciding whether a crime has been committed.

Milwaukee County District Attorney John Chisholm, a Democrat, has used the John Doe process at least twice against Republican Gov. Scott Walker. One probe focused on whether Walker’s aides engaged in illegal campaigning when he was Milwaukee County executive. The other looked into whether Walker’s 2012 gubernatorial recall campaign illegally coordinated with outside conservative groups.

The first probe netted six convictions, including embezzlement by two staffers who served under Walker when he was Milwaukee County executive. The state’s right-wing Supreme Court majority halted the other investigation this summer — ruling, contrary to federal law, that candidates can coordinate with outside groups on “issue advocacy.” That term is political jargon for ads that praise or criticize a candidate’s position on an issue but don’t expressly ask voters to elect or defeat him/her, saying those communications amount to free speech.

The Republican justices who decided the case had received a total of at least $8 million in campaign contributions from the outside groups involved in the case, but they refused to recuse themselves.

The repeal of the John Doe law was sweet revenge for Republican lawmakers who feared their party would be hurt by the revelations of corruption. They branded the investigation a political witch-hunt, despite the involvement in it of Republicans.

In response, they fast-tracked a bill through the Legislature that bars prosecutors from using John Does to look into political misconduct, saying they want to protect lawmakers from such investigations. Prosecutors could still use John Does to investigate a broad swath of other major crimes, such as high-level drug dealing, homicides and racketeering.

Walker signed the bill into law in late October.

But political misconduct is now off-limits, raising the inevitable question: What are Republican lawmakers so afraid of? With their control of all branches of state government, including the Supreme Court, the move strips prosecutors of a crucial tool they need to combat corruption and renders politicians practically untouchable. How can the people of Wisconsin protect themselves against the corruption of absolute power, especially when the John Doe repeal is combined with other, similar GOP bills on a fast track, such as the annihilation of the Government Accountability Board (see page 4)?

Prosecutors have other methods to go after misconduct. They can pursue a case in the traditional way, with detectives coaxing witnesses to cooperate, cross-checking their stories, gathering documents, executing search warrants and issuing subpoenas. They also could turn to grand juries.

But those tactics have drawbacks.

Most prosecutors are overwhelmed with street crime and don’t have the expertise to tackle complicated, wide-ranging political misconduct cases outside of a John Doe fact-finding probe, said Dall’Osto, the defense attorney.

Without the John Doe’s secrecy, detectives’ work can become public much more easily. Prosecutors can ask a judge to seal a case record, but even approaching someone for an interview could prompt a witness to warn others to keep quiet or destroy evidence, said La Crosse County District Attorney Tim Gruenke.

“If you’re investigating the local town board for using public equipment to pave their driveway or something, you want to talk to the local contractors. They’ll tell everyone else the investigator was here and everyone will stop talking,” said Gruenke, a Democrat who has never been involved in a John Doe.

The grand jury process offers district attorneys secrecy and the ability to compel testimony, but that process is seldom used in Wisconsin, where district attorneys can charge people on their own.

State grand juries would be cumbersome — they require 17 people — and bringing one into court day after day requires space and money, said University of Wisconsin-Madison law professor David Schultz.

Still, other states have been able to pursue political corruption cases without the John Doe process. Wisconsin prosecutors still have considerable powers and there are more statutes on the books that can be broken now than ever before, said Donald Downs, a UW-Madison political science professor and an expert on criminal law and politics.

“I don’t mind making that process a little more subject to public scrutiny than it was,” Downs said. “It’s not going to be like, ‘Oh, my God, it’s so much easier to commit political misconduct.”

But will it be?

This story uses interviews and information provided by The Associated Press.