On John Doe, DAs Deserve Our Thanks!

April 29, 2016

Milwaukee DA John Chisolm
Milwaukee County DA
John Chisolm

The Wisconsin Democracy Campaign thanks the courageous district attorneys John Chisholm, Ismael Ozanne, and Larry Nelson for appealing the Wisconsin Supreme Court’s decision in the John Doe II case to the U.S. Supreme Court on Thursday.

While the details of their appeal have not been made public yet, there are two solid grounds for the appeal.

The first is that at least a couple of the justices should have recused themselves from the John Doe case because of a conflict of interest.

The four justices on the Wisconsin Supreme Court who dismissed the John Doe investigation concerning alleged coordination between Scott Walker and so-called outside groups were aided enormously by some of the very groups that were party to the John Doe case.

Wisconsin Manufacturers & Commerce, Wisconsin Club for Growth, and Citizens for a Strong America—all of which were reportedly embroiled in the John Doe--together spent more than $8 million in support of Justice Patience Roggensack, Justice Annette Ziegler, Justice Michael Gableman, and Justice David Prosser.

Dane County DA Ismael Ozanne
Dane County DA
Ismael Ozanne

The second, and even more crucial, basis for an appeal is the fact that the Wisconsin Supreme Court blatantly misread forty years of U.S. Supreme Court precedent on campaign finance.

In tossing out the John Doe II case, the Wisconsin Supreme Court said that the First Amendment prohibits the state of Wisconsin from imposing a ban on coordination between candidates and issue advocacy groups. But dating back to Buckley v. Valeo in 1976 and right on through Citizens United of 2010, the U.S. Supreme Court campaign finance decisions have been predicated on there being no coordination between candidates and issue advocacy groups.

In Buckley, the court ruled that expenditures by outside groups that are coordinated with candidates amount to campaign contributions. “The ultimate effect is the same as if the person had contributed the dollar amount to the candidate and the candidate had then used the contribution,” the court ruled. Such expenditures, it said, should be “treated as contributions rather than expenditures.”

Only the lack of coordination reduces the risk of corruption, the Court stressed in Buckley. “The absence of prearrangement and coordination of an expenditure with the candidate or his agent . . . alleviates the danger that expenditures will be given as a quid pro quo for improper commitments from the candidates.”

Iowa County DA Larry Nelson
Iowa County DA
Larry Nelson

Even in its infamous Citizens United decision, which allowed independent groups to spend unlimited amounts of money, the U.S Supreme Court stressed that such groups had to be independent; they couldn’t coordinate with their favored candidates: “By definition, an independent expenditure is political speech presented to the electorate that is not coordinated with a candidate.”

Justice Anthony Kennedy wrote that line. He will be the crucial vote in this case, assuming that the U.S. Supreme Court hears it. And if Justice Kennedy stands by his own reasoning in Citizens United, the district attorneys have an excellent chance of prevailing and getting the John Doe II decision overturned.

That would be a tremendous outcome because unless the John Doe II decision is overturned, we will have little hope in Wisconsin of limiting the corrupting influence of dark money over our politics.