Scalia’s Death Ups the Odds of John Doe Appeal
by Matthew Rothschild, Executive Director
February 15, 2016
For Wisconsin, the death of Supreme Court Justice Antonin Scalia increases the chances that the John Doe case may yet reach the High Court.
Right now, the district attorneys of Dane, Iowa, and Milwaukee counties have joined the case and have expressed an interest in appealing last July’s Wisconsin Supreme Court decision to the U.S. Supreme Court.
That decision halted the John Doe investigation that was looking into allegations that Scott Walker illegally coordinated with outside groups during the recall elections of 2011 and 2012. The Wisconsin Supreme Court said the First Amendment forbids the state from banning coordination between candidates and issue advocacy groups, though the U.S. Supreme Court has said no such thing.
If the district attorneys were concerned that appealing to the U.S. Supreme Court might backfire because a majority might uphold the Wisconsin Supreme Court, they can put that fear to rest.
With the death of Justice Scalia, there is no risk that the U.S. Supreme Court would side with Wisconsin Supreme Court, since the four liberal justices have consistently voted in favor of campaign finance regulations, and they now essentially hold veto power.
Similarly, prior to Scalia’s death, if one or more of those liberal justices shared the concern about a reactionary ruling and therefore might have voted not to hear the appeal, they now have no reason not to grant the district attorneys their writ of certiorari. (The deadline for the district attorneys to file that writ is March 1.)
Scalia represented a problem for the district attorneys and for the liberal justices on the U.S. Supreme Court.
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 that the Wisconsin Supreme Court erased in its John Doe decision.
One last word, and a good one, on Justice Scalia: Unlike the conservative justices on the Wisconsin Supreme Court, and unlike the Republican legislators who recently rewrote Wisconsin’s campaign finance law, Scalia actually believed in full disclosure.
Look at Doe v. Reed, which the U.S. Supreme Court decided just six months after Citizens United. The case involved an anti-gay-marriage group that insisted that publishing the names of the people who signed its petition violated their First Amendment rights. Scalia didn’t buy that one bit, even though he opposed gay marriage. Here’s what he wrote:
“Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed. For my part, I do not look forward to a society which, thanks to the Supreme Court, campaigns anonymously … and even exercises the direct democracy of initiative and referendum hidden from public scrutiny and protected from the accountability of criticism. This does not resemble the Home of the Brave.”