FAN 68.1 (First Amendment News) Wisconsin high court strikes down campaign finance laws in Walker dispute

As reported in the New York Times: “The Wisconsin Supreme Court on Thursday ruled that a criminal investigation into coordination between conservative groups and Gov. Scott Walker’s 2012 campaign cannot continue. The decision of the court ends the specter of a criminal investigation as Mr. Walker pursues the Republican nomination for president. Mr. Walker, who has won three elections for governor over the last five years including a recall challenge in 2012, officially announced his bid on Monday.”

Today the Wisconsin Supreme Court handed down in ruling in Wisconsin v. Peterson, et alJustice Michael Gableman wrote the lead opinion. Justice David T. Prosser wrote a long concurring opinion in which Chief Justice Patience Drake Roggensack joined as to Sections IV and V of the opinion, and Justices Annette Kingsland Ziegler and Michael Gableman joined as to Section IV of the opinion. Justice Shirley Abrahamson wrote an opinion concurring and dissenting in part. Justice Patrick Crooks likewise wrote an opinion concurring and dissenting in part. All tolled the various opinions came to 634 paragraphs. (Justice Ann Walsh Bradley did not participate).

The case concerned charges that Governor Scott Walker’s campaign team violated certain campaign finance laws during the 2012 recall elections by working in conjunction with dark money groups.

In relevant part, the Court declared:

To be clear, this conclusion ends the John Doe investigation because the special prosecutor’s legal theory is unsupported in either reason or law.  Consequently, the investigation is closed.  Consistent with our decision and the order entered by Reserve Judge Peterson, we order that the special prosecutor and the district attorneys involved in this investigation must cease all activities related to the investigation, return all property seized in the investigation from any individual or organization, and permanently destroy all copies of information and other materials obtained through the investigation.  All Unnamed Movants are relieved of any duty to cooperate further with the investigation.

It also added:

Our lengthy discussion of these three cases can be distilled into a few simple, but important, points.  It is utterly clear that the special prosecutor has employed theories of law that do not exist in order to investigate citizens who were wholly innocent of any wrongdoing.   In other words, the special prosecutor was the instigator of a “perfect storm” of wrongs that was visited upon the innocent Unnamed Movants and those who dared to associate with them.  It is fortunate, indeed, for every other citizen of this great State who is interested in the protection of fundamental liberties that the special prosecutor chose as his targets innocent citizens who had both the will and the means to fight the unlimited resources of an unjust prosecution.  Further, these brave individuals played a crucial role in presenting this court with an opportunity to re-endorse its commitment to upholding the fundamental right of each and every citizen to engage in lawful political activity and to do so free from the fear of the tyrannical retribution of arbitrary or capricious governmental prosecution. Let one point be clear: our conclusion today ends this unconstitutional John Doe investigation.

Over at the Election Law Blog, Professor Richard Hasen noted:

Today’s lengthy and contentious 4-2 ruling dividing the Court on partisan/ideological lines, from the Wisconsin Supreme Court ending the so-called “John Doe” probe is significant for three reasons: (1) it removes a cloud from the Scott Walker presidential campaign; (2) it guts, perhaps for years, the effectiveness of the state of Wisconsin’s campaign finance laws, and (3) it reenforces conservative beliefs that they are the victims of frightening harassment, a belief which is likely to lead conservative judges to strike more campaign laws.  The case also raises significant questions about judicial recusal which go unanswered, and provide one of two potential bases to seek U.S. Supreme Court review in this case. Still, high court review seems unlikely.

Check with the Election Law Blog as Professor Hasen has additional substantive comments on the case.

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28 Responses

  1. Brett Bellmore says:

    A great day for freedom of political speech. And, now that the gag orders are lifted, we’re going to learn the true dimensions of what was going on. Hopefully this will lead to some reform, perhaps greater limits on the use of gag orders to prevent the targets of official action from contesting it.

    Gag orders have no place in a free society. Their deployment in government action against political speech is particularly ugly.

    • Shag from Brookline says:

      How about this “gag order” issued by the divided court:

      ” … and the district attorneys involved in this investigation must cease all activities related to the investigation, return all property seized in the investigation from any individual or organization, and permanently destroy all copies of information and other materials obtained through the investigation.”

      This statute had long been in effect and was not enacted to get at Walker. The public will never know, if this decision prevails, the information that was developed.

  2. Brett Bellmore says:

    Properly so, Shag. When the police invade your home and seize your papers and possessions in a search related to a non-crime, the public has no right to know what they seized.

    I mean, suppose the police invaded your home and seized your computer on a charge of copyright violation, (You call yourself Shag, the copyright on Scoobie doo hasn’t expired.) and a court quashed the proceeding. Would it be a tragedy that the public didn’t get to know what was on your computer? Hardly.

    They tried to criminalize political speech. They got slapped down. A good day for liberty.

    • Shag from Brookline says:

      So Brett seems to be in accord with at least this apparent extension of the Warren Court. But the liberty interests there were of a different kind than involved with elections.

      But what are Brett’s views on “gag orders” in the form of Jim Crow era lynchings?

  3. Joe says:

    Rick Hasen’s discussion is helpful — sounds like at best there is a reasonable dispute on how “unreasonable” the investigation was under current campaign finance laws. As he notes in the Slate piece: “ordered an end to the investigation and, incredibly, given that the case is only at a preliminary stage, ordered the destruction of all the evidence.” The special action there would warrant particularly wrongful events & it is not really surprising that ideologically sympathetic (as Hasen notes) would think that applies here.

    Reference was made to gag orders; as a matter of principle, I do find them problematic.

    Still, if we are concerned with “the true dimensions” of what is going on, the destruction of the materials would seem to be a problem. Now, Brett argues that the government has no right to the materials. That seems debatable especially to the extent we compare this to an unreasonable search and seizure. Still, have not read the long opinions and dissents. Either way, as Shag suggests, if “true dimensions” is our concern, such destruction does seem unfortunate.

    • Brett Bellmore says:

      It’s not as though the state Supreme court came out of the blue in ruling against the prosecutor. After the judge who originally issued the subpoenas, search warrants, and gag orders recused herself, (For reasons she refuses to explain.) her replacement, Judge Gregory Peterson, arrived at the same conclusion as the majority on the state Supreme court, and shut the investigation down. The ruling yesterday just confirmed that.

      It’s a philosophical issue divide, I think, on the relative importance of freedom of political speech, and the importance of addressing “corruption”. And politics, strangely enough, agrees with ideology on both sides of this divide.

      I think it’s no accident that the John Doe investigation was intitiated by Democrats, and only going after conservatives, any more than that campaign ‘reformers’ are outraged at small reductions in early voting in states like S.C., but can’t see any problem with a complete absence of early voting in new York. Campaign ‘reform’ has become a political weapon of choice for Democrats, even if it started out with good motives.

    • Brett Bellmore says:

      Think I need to remark on this: “and, incredibly, given that the case is only at a preliminary stage,”

      The case is a case under state law, and has arrived at the state Supreme court. This isn’t the preliminary stage, this is the end of the line, unless the prosecutor, incredibly, persuades the Supreme court to take the case. I don’t think anybody really thinks that’s probable, and Hasen doesn’t expect the outcome if they did like it to be favorable to the ‘reformers’.

  4. Joe says:

    was not under the impression the divided ruling “came out of the blue” — split rulings by the USSC also are known to arrive after questionable lower court rulings — and the lower court action is part of the discussion by Rick Hasen et. al. The lower court judge’s holding was by one account labeled “stunning.” Once a lower court judge finds things, it does make it easier.

    Judges repeatedly recuse themselves for reasons they don’t express publicly. This is common practice for USSC justices too. One account says the judge said she could not comment. I don’t know the rules there.

    Yes, there is a divide in respect to a concern for even having disclosure laws, which Citizen United noted was allowable and even good policy. Like for D.C. v. Heller, some think the Supreme Court has not gone far enough there though on this point even Scalia does not think disclosure rules violate the 1A.

    Concern for corruption (no quotes needed) as Zephyr Teachout et. al. notes in her book goes back to the days of Madison & the rules were much more strict in the late 19th Century in various ways. Some people selectively are concerned about such history, others not. But, yes, there is a split on such issues. This is a concern that crosses political lines — McCain-Feingold shows this. The importance of checking the power of governmental officials for corruption, at least if you are libertarian and worry about the abuses there, seems not too controversial. There has been numerous investigations and prosecutions here for members of each party.

    There is some concern there about doing so for political reasons, clearly, so special prosecutors and other means should be used when appropriate. This includes judicial review that in various cases might override democratically passed laws or acts of local prosecutors who often are elected. There also seems to be some concern in states with a long history of racial discrimination, e.g., especially when the regulations are explicitly supporters by their backers for partisan reasons (e.g., ignoring issues of absentee voting and focusing on rarely an issue in person fraud — see Rick Hasen on this topic).

    Finally, again, if finding out what happened is our concern, destruction of the materials seems problematic, even if (I don’t know) it’s warranted in this case.

    • Brett Bellmore says:

      Yeah, theoretically disclosure rules aren’t a problem. They seemed fairly harmless until it was realized they provided target lists for harrassment. That put them in a considerably different light. Brendan Eich probably used to think disclosure was a great idea, too. Now he’s unemployed.

      You start punishing people for their political donations, the case for forcing people to disclose their political donations gets a lot weaker.

      That business with the IRS (And other agencies were involved, too.) didn’t help, either.

  5. Joe says:

    One more thing since I have a bit of knowledge about it as a resident.

    Early voting is used as a means to address concerns about long lines and other problems with having voting on Election Day alone. I live in NY. I never had this issue myself and at least in my area, long lines etc. has not been a concern. In various other areas, it was much more of an issue. This is a major reason why early voting might make sense in some but not other areas that goes beyond “Democrats” supporting it. Early voting again is something that goes beyond political lines.

    • Brett Bellmore says:

      Joe, North Carolina had a 65.4% turnout in 2012. New York had a 53.5% turnout. I think you probably need to find another reason why zero early voting in New York is ok, and a month of it in North Carolina isn’t enough.

      My explanation is pretty straightforward: Democrats control NY politics, Republicans SC politics, and voting rights activists are almost all Democrats. They don’t care about problems in states where fixing problems won’t help the Democratic party.

      You can disprove my theory easily enough: Just show me where Democratic voting rights activists are putting a lot of energy in to reforming things in a state controlled by Democrats.

      • Joe says:

        You mentioned “states like S.C.” and for some reason point me to NC turnout percentages, which doesn’t really tell me how even that state deals with the voters that come to the polls. This would require me knowing actual numbers of voters translated by population, the number of polling stations and how they are run etc. Long lines etc. weren’t just figments of imagination in various places. But, that simply hasn’t been as much of an issue in various regions of NY. Other states do have more of a problem there.

        Also, Republicans control one branch of the NY legislature. So, the legislature “cares” about Republicans too on that level, I’d think. And, your cynicism is as usual darn selective — if it is “just politics,” why in heck are you always talking about Democrats here? Republicans would be as cynical there and if you actually was consistent in your “anarchist libertarian” ways, which you simply are not, it would be a lot easier to take you seriously.

        Democratic voting rights activists are putting energy to improve voting rights across the board. They pushed and still push for national improvements there. Certain regions have a long history of problems all the same.

  6. Shag from Brookline says:

    Brett’s challenge to Joe:

    “You can disprove my theory easily enough: Just show me where Democratic voting rights activists are putting a lot of energy in to reforming things in a state controlled by Democrats.”

    ignores whether reform is called for in such a state. Perhaps Brett can identify such a state and the type of reform he thinks would be appropriate, presumably to elect fewer Democrats.

    • Brett Bellmore says:

      Shag, I did just point out that New York has substantially lower voter turnout than North Carolina, and no early voting, even absentee ballots are only available for cause. North Carolina has both early voting AND no cause absentee voting.

      Which state are voting rights activists obsessing about? The state with lenient voting rules and high turnout.

      • Shag from Brookline says:

        Brett, in NY what does the voting reflect regarding percentage of white versus black (and others of color) voters that suggest reform – and what kind of reform? Are whites in NY complaining that they have a problem getting to vote? Are blacks (and others of color)? What if both whites and blacks (and others of color) are proportionately voting low percentage-wise? Should eligible voters be punished for not voting? That’s a different issue. As to what constitute “lenient voting rules,” what does that reveal historically? Fraud? As to “high turnout, is that a problem if there is no significant fraud?

        • Brett Bellmore says:

          In both NY and NC, the black turnout is higher than the white. Which in terms of disparate impact analysis would theoretically have you trying to do something about suppression of the white vote, not the black.

          Assuming that we care about the voting rights of *people*, regardless of color, NY absolutely, objectively, comes off worse than NC. Lower turnout for both blacks and whites, more obstacles to voting.

          And, again, where do voting rights activists direct their ire? North Carolina, with weeks of early voting, and absentee ballots available without cause, and high turnouts. On every objective basis, NC is better than NY, and the voting rights activists Don’t Care.

          The voting rights activists are almost all Democrats, and NY is already controlled by the Democratic party, while NC is controlled by the Republican. Bottom line: Democratic voting rights activists only care about impediments to voting where removing them is likely to help the Democratic party.

          Only care about corruption under those circumstances, too.

          It might have started out as an honest crusade to do something about a real problem, but at this point it’s become a totally partisan effort to help the Democratic party.

          • Shag from Brookline says:

            The voting limitations activists are almost all Republicans, particularly in the former slave states with their Jim Crow experiences in that regard. Perhaps Brett should get these activists to head north to NY to convince white NY voters how to impose limitations on voting by people of color. Apparently white voters in NY can’t be bothered to do this on their own.

            Brettt, your “objectivity” on NY voting needs fact-checking. And why did you select North Carolina instead of South Carolina to compare with NY? Are you re-engineering the facts to fit your state of mind?

            And Brett ignores the obvious partisanship in the former slave states in their efforts to reduce voting by people of color. Note that Brett offers no proof of any meaningful voting fraud.

            No, Brett and his ilk are concerned with the concept/fear of “demography is destiny” as pointed out by Howell Raines in his NYTimes essay “The Dream World of the Southern Republicans.”

            • Brett Bellmore says:

              Because the latest legal case having to do with voting rights I remembered was in North Carolina. South Carolina that year had about the same turnout as NC that year, again, much better than NY, despite having the same lack of early voting options. Perhaps New York has other ways of suppressing the vote, too? Must be some reason they’re doing such a lousy job getting people to the polls.

              • Shag from Brookline says:

                Do you have a cite for the case? What year was the voting in – presidential or off-year?

                Why would NY suppress the vote? And how, especially without any protest? We [and that assumes you included unless you are wearing a tin foil hat] know why the former slave states want to suppress the vote of certain voters who have protested.

  7. Brett Bellmore says:

    Why would NY suppress the vote? Why do politicians ever suppress the vote? Because they think they can discourage people who’d vote against them from voting.

    The fact remains, voting rights activists are calling a reduction in early voting in states that have weeks of it, in multiple varieties, “vote suppression”. If that’s true, how can not having early voting AT ALL not be just a much worse case of voter suppression? With the much lower turnout in NY compared to NC to indicate that, if it’s vote suppression, it’s working.

    I’m asking for objective standards for what constitutes “vote suppression”, If you don’t like it in one state, you can’t approve of it in another.

    • Shag from Brookline says:

      Is Brett with this:

      “’m asking for objective standards for what constitutes “vote suppression”, If you don’t like it in one state, you can’t approve of it in another.”

      advocating for uniform voting laws in all 50 states not only for federal but for state elections?

      Brett cites no evidence that NY suppresses the vote. History with Jim Crow has demonstrated that certain states (aka the former slave states) did take such steps and have continued to attempt to do so. What is need for some states is not applicable to all.

      • Brett Bellmore says:

        “Brett cites no evidence that NY suppresses the vote.”

        Except for the little matter of their doing exactly what is being called “vote suppression” in other states, only to a greater degree, and the little matter of the lower turnouts. I cited no evidence except for everything I wrote above.

        Anyway, off to the Phil-Am picnic, I made Siu Bao, Pity you won’t be there, I bet you’d like it.

        • Shag from Brookline says:

          It is clear, Brett, that you need to learn a lot about evidence in legal proceedings. I linked to the article you cited and it is an ABC News report on a recent federal court trial just started in North Carolina challenging that state’s 2013 enacted voting laws. In addition to the Justice Department, the NAACP is also a plaintiff. The report states that the trial is expected to last 2-3 weeks. The report provided very little background and only a bit of the early trial testimony. The article fails in its content to support your case of a comparative with NY. Even with identical statutes, the facts on the ground can differ state to state. Perhaps you might check out Ruth Marcus’ WaPo column today “Another civil rights struggle in the Carolina over voting.”

          • Brett Bellmore says:

            Shag, you asked for a cite on the recent case that caused me to mention N.C. I think a simple news account was sufficient to explain why I chose that state: It was on my mind in this context.

            The facts on the ground can vary from state to state. Sure can: N.C. has early voting, NY doesn’t, NC has high turnouts, NY low. So, naturally, it’s NC being accused of vote suppression. If they suppress the vote any more they’re going to reach 100% turnouts.

            What I’m protesting here is the idea that a minor reduction in early voting can be “suppression”, but not having it at all is no big deal. And I wish to be explicit about the “fact on the ground” that is responsible for this: Self-appointed voting rights activists are essentially all Democrats, and have no interest in doing their thing where it won’t advance the interests of the Democratic party. They obsess over the mote in N.C., and ignore the beam in NY, because removing the beam can’t help them win a few more seats.

            • Shag from Brookline says:

              Is it mere coincidence that NC changed its voting laws in 2013 shortly after Shelby County? Did NC want to be like NY? The evidence on the ground is addressing the impact of the NC voting changes in the 2014 elections. As I noted, a plaintiff in the case is the NAACP in NC. Let the evidence at the trial play out, as well as the decision and most likely appeals either way. As for NY, perhaps Brett can get up a group to bring suit there. But SCOTUS invited the NC suit with its Shelby County decision (5-4, of course).

        • Shag from Brookline says:

          Brett, yes, I think I would have enjoyed the picnic. Since I’m first generation, I enjoyed many ethnic picnics here in the Boston area beginning in the 1930s. Ethnic picnics in American have long been a celebration of survival in the New World. I trust that your son and wife and you had a good time. I’m sure I would have enjoyed the soul food offered at the picnic, just as I have enjoyed the soul food at many picnics in the past. I had sort of a solo picnic at home last night with no ants or humidity at my home: gazpacho, fresh sweet corn, sliced smoked chorizo smothered with a sunnyside up fried egg, watermelon with cheese, followed with a double chocolate chip biscotti and peppermint tea; sort of a multi-cultural picnic.

          Such picnics are not that readily available as I get longer in the tooth and shorter in the step. But music is readily available, good for the soul, especially jazz. Last night on PBS World I enjoyed a documentary on Mary Lou Williams, a great jazz pianist. This morning with breakfast I put on my Big Joe Turner “Boss of the Blues” CD. Now I’m off to the real world of Sunday political talk shows – and I talk back to them.

          • Brett Bellmore says:

            For all our disagreements, if you’re ever in Greenville, let me know. I’ll have you over for some Philippine BBQ.