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Wednesday, March 19, 2014

Legal Fight Over John Doe 2 Continues With Help from GOP Lawmakers

New documents reveal arguments over campaign coordination

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In recent weeks, the media and public have been focused on the more than 27,000 pages of documents released as part of the first John Doe investigation into the actions of high-level aides to Gov. Scott Walker, then serving as Milwaukee County executive.

But the legal fight over the proceedings of John Doe 2—apparently about the Walker campaign’s coordination with conservative special-interest groups during the 2011 and 2012 recall elections—continues working its way through the courts.   

The issues raised by the new John Doe also are spilling over into the Legislature, where Walker and his allies are getting some help from Republican leaders, according to the Madison-based Center for Media and Democracy (CMD). GOP lawmakers Sen. Mary Lazich (R-New Berlin) and Senate Majority Leader Scott Fitzgerald (R-Juneau), who may be under investigation in the new John Doe, are fast-tracking a bill that would legalize the type of coordination that the Doe prosecutors apparently say Walker and the outside groups did illegally.

The bill would “legalize the conduct under investigation in time for statewide elections later this year,” wrote CMD’s staff counsel, Brendan Fischer, on the organization’s PR Watch blog.

According to Fischer’s analysis, SB 654 would reverse previous judicial decisions and declare that independent “issue ads”—those ads that allegedly support an issue, but not a specific candidate—would not be considered a contribution to a candidate if they are coordinated with a candidate. Currently, the outside groups’ expenditures that are coordinated with a candidate are considered to be a campaign contribution and must be publicly reported.

In the John Doe 2 investigation, prosecutors are apparently arguing that deep-pocketed outside special-interest groups—such as the Wisconsin Club for Growth, Citizens for a Strong America, Wisconsin Manufacturers and Commerce and others—coordinated their efforts with Walker’s campaign. Under the current interpretation of Wisconsin’s campaign finance laws, that’s illegal. SB 654 would allow that sort of coordination, potentially allowing millions of dollars of advertising to flood Wisconsin, and Wisconsin voters wouldn’t be able to identify the donors that are underwriting those ads. It would allow candidates to exceed campaign contribution limits and rely on the unlimited anonymous donations to independent groups that run sympathetic ads during elections.

 

Multiple Lawsuits Move Forward

The John Doe 2 federal and state court cases have been highly active in recent weeks, even though the documents produced in them aren’t always disclosed publicly.

Prosecutors scored a big win earlier this year when a panel of appellate judges ruled that they had the right to launch the investigation, which spans five counties under the direction of special prosecutor Francis Schmitz, a former assistant U.S. attorney who was on President George W. Bush’s short list for U.S. attorney in the Eastern District of Wisconsin. The anonymous defendants in that case are trying to get the state Supreme Court to take up the matter, either as an original case or as an appeal. The justices haven’t yet said whether they would hear the case.

Perhaps more critically, the investigation seemed to be stymied by a January ruling by Judge Gregory Peterson, who is overseeing John Doe 2, quashing subpoenas sent to the special-interest groups under investigation. Although all matters in the Doe are supposed to adhere to a gag order, the Wisconsin Club for Growth’s Eric O’Keefe leaked Peterson’s decision to the editorial page of the Wall Street Journal.

New filings are shedding light on what, exactly, Peterson decided in that order. According to redacted—but still visible—portions of one document, Peterson’s three-page order quashed the subpoenas and required the materials seized to be returned to their owners.

But two weeks later, Peterson stayed his order to return the materials and noted that the prosecutors’ arguments were “not frivolous.” He “encouraged” the appeals court to address the constitutional arguments raised in the matter. 

The Wisconsin Club for Growth and its director, Eric O’Keefe, have also filed suit in federal court, asserting that the investigation is violating their civil rights. The organization spent more than $9 million in the Wisconsin recalls in support of Walker and his agenda, and O’Keefe’s related organizations have been recipients of Wisconsin Club for Growth cash. In addition, longtime Republican operative and Club for Growth spokesman, R.J. Johnson, also worked for Walker’s 2010 and recall campaign. The case is before right-wing U.S. Judge Rudolph Randa in Milwaukee.

New filings poke holes in the plaintiffs’ arguments, noting that federal courts are barred by “long-standing Supreme Court precedent” from halting a state criminal investigation such as this John Doe.

O’Keefe and his organization are suing the Doe prosecutors in federal court, as well as a special investigator hired by the prosecutors, Dean Nickel. In Nickel’s defense, his attorney argued that Nickel didn’t initiate the investigation, nor does he hold any bias against O’Keefe or conservative groups that are being investigated.

Not surprisingly, Nickel stated that he would file a motion for sanctions against the plaintiffs, “for, among other things, disregarding the law and/or failing to explain why existing law does not apply to this case”—in other words, for filing a frivolous lawsuit.