Open Letter Requesting DA Intervention in John Doe II Case

December 3, 2015

Columbia County DA, Jane Kohlwey
jane.kohlwey@da.wi.gov
Phone: (608) 742-9650

Dane County DA, Ismael Ozanne
danecoda@da.wi.gov
Phone: (608) 266-4211

Dodge County DA, Kurt F. Klomberg
kurt.klomberg@da.wi.gov
Phone: (920) 386-3610

Iowa County DA, Larry E. Nelson
Larry.Nelson@da.wi.gov
Phone: (608) 935-0393

Milwaukee County DA, John Chisholm
da.milwaukee@da.wi.gov
Phone (414) 278-4646

Dear District Attorney,

Please intervene in the John Doe II case, and petition the Wisconsin Supreme Court to allow you to become a party to the case so you can appeal it straight up to the U. S. Supreme Court.

As I’m sure you know, yesterday, the Wisconsin Supreme Court stripped John Doe II Prosecutor Francis Schmitz of his prosecutorial authority. The Court said it didn't intend to impede an appeal to the U. S. Supreme Court, and invited local DAs who were involved in the case earlier to ask the State Supreme Court to authorize them to take the case over:

“While the court did not see a need to force all five of the district attorneys into becoming named parties at the time it granted review, the situation has now changed as a result of the legal ruling in this opinion that Attorney Schmitz will no longer be able to represent the prosecution as the special prosecutor. Accordingly, one or more of the district attorneys could seek to intervene in these actions, which would allow for the prosecution to be represented in future proceedings. Given the inability of Attorney Schmitz to continue acting as the special prosecutor based on his invalid appointment, such a motion to intervene by one or more of the district attorneys would receive prompt review by this court.”

Since you were one of those DAs who was involved, and since this case has profound significance not only for the John Doe but for the integrity of our campaign finance system, I urge you to step up and take this on.

There are three ripe grounds for appeal:

1. Failure to recuse

The four conservative justices on the State Supreme Court benefited from $8 million in election expenditures by some of the very same groups that the prosecutor was investigating. Under the U. S. Supreme Court case, Caperton v. Massey Coal, at least a couple of those justices had an obligation to recuse themselves.

2. Blatant misreading of campaign finance precedents

The State Supreme Court in its July ruling legalized coordination between candidates and outside issue-ad groups, citing the First Amendment. But nowhere in 42 years of U. S. Supreme Court rulings starting with Buckley v. Valeo has the U. S. Supreme Court made this claim. In fact, the whole edifice of its campaign finance rulings depends on the distinction between direct donations to candidates, which can be limited because of their potential corrupting influence, and contributions to issue advocacy groups, which, because the candidate is not working with them, the Court has said are not as potentially corrupting and therefore can be unlimited.

As the Seventh Circuit Court of Appeals has noted, "No opinion issued by the Supreme Court, or by any court of appeals, establishes ('clearly' or otherwise) that the First Amendment forbids regulation of coordination between campaign committees and issue-advocacy groups – let alone that the First Amendment forbids even an inquiry into that topic." O'Keefe v. Chisholm, 769 F. 3d 936, 942 (7th Cir. 2014), cert. denied, 135 S. Ct. 2311 (2015).

3. Ignoring evidence of potentially illegal express advocacy coordination

In its July ruling, the Wisconsin State Supreme Court said candidates could not coordinate with “express advocacy” groups – those that say “vote for” or “vote against” people running for office. In his petition for reconsideration, Prosecutor Schmitz noted that there was evidence of express advocacy coordination and sought to keep the investigation open. As Justice Shirley Abrahamson noted in her dissent yesterday: “Evidence of coordinated express advocacy on which the Special Prosecutor relies was presented both to the John Doe Judge and to this court. The legal arguments and evidence the Special Prosecutor presented to the John Doe Judge and to this court provide ‘reason to believe’ a crime was committed by coordinated express advocacy. Accordingly, reconsideration should be granted and the investigation into coordinated express advocacy should continue.”

To let this dangerous State Supreme Court decision stand without challenge would do a grave disservice to the people of Wisconsin you represent.

Please rise to this urgent occasion.

Thanks for your consideration.

Matt Rothschild signature

Matt Rothschild
Executive Director
Wisconsin Democracy Campaign

PDF Copy of Letter