Scott Walker by Gage Skidmore
In Wisconsin, a legal firestorm has stalled a major, multi-county criminal inquiry into possibly illegal political collusion between “independent” political groups and Gov. Scott Walker’s campaign during the 2012 recall elections.
Yet, in Virginia, a Republican political operative who simultaneously managed both a congressional campaign and a so-called super political action committee just pleaded guilty to illegally funneling money between the two organizations. According to an Associated Press dispatch, federal prosecutors cited the case as the first time an individual has been convicted of illegally coordinating campaign contributions between political entities.
It's looking more and more as if analogous circumstances in Wisconsin involving the presidentially minded Walker won't result in similar charges, much less convictions. That's the result of heavy-handed Republican and conservative tactics, both within and outside an increasingly partisan judicial and political environment.
The Virginia operative, Tyler Harber, served as both campaign manager for and political consultant to Chris Perkins, a Republican running for Congress in 2012. Herber admitted he arranged to spend $325,000 of money from the unnamed PAC on campaign ads targeting Perkins’ Democratic opponent.
Does that sound at all familiar? It might. Read the following passage, part of a summary of Wisconsin’s second John Doe probe looking into apparently illegal coordination between Scott Walker's campaign organization and 29 "independent" political action groups. The two cases aren't exactly similar, but the analogies are clear.
The passage is from the Walker dossier at American Bridge, a progressive research and communications organization whose mission is to hold Republicans accountable for their words and deeds. American Bridge recounts how secret Doe documents made public by court order revealed that Walker and his campaign were suspected:
... of illegal coordination with a constellation of conservative groups that were supposedly only engaging in issue advocacy. The documents put Walker and R.J. Johnson, a confidant of Walker’s and the general consultant to Walker’s campaign, at the center of a “criminal scheme” to coordinate fundraising with outside conservative groups. The documents provided evidence that Johnson had been working closely with state and national conservatives to create a coordinated message in support of Walker, calling it “an extensive coordination scheme that pervaded nearly every aspect of the campaign activities.” Johnson allegedly used the Wisconsin Club for Growth as a “hub” for illegal coordination, going so far that the national Club for Growth raised legal concerns about his activity.
But the Wisconsin Doe dust-up isn't just about conservatives trying to save one of their own seemingly rising stars, anyway they can. It's about a legal strategy that could lay waste to common, and in Wisconsin constitutionally protected, investigatory powers granted to prosecutors. The conservative strategy, if successful, could create a new flavor of what the legal community refers to as
prior restraint.
Read on, below the fold, for the disturbing details.
The Wisconsin John Doe probe, as I noted above, has been stalled for months in both state and federal courts. The state's time-honored Doe process -- established in the state's constitution -- is akin to a secret grand jury probe, but does not employ a jury and involves only prosecutors, typically county district attorneys who issue charges if their inquiry leads them to believe crimes were committed.
Such a Doe probe is not a criminal case, it's a fact-gathering process that might or might not lead to charges. The proceeding is kept secret to protect the innocent, which in this particular proceeding led to the ironic spectacle of subjects of the Doe inquiry outing themselves in order to fight the investigation, then paradoxically claiming that their privacy had been violated by ... the investigation itself.
Conservative groups tied to Walker have waged their furious legal battle both in courts and in the press, in a manner overtly intended to halt the investigation before it can reach any conclusions. The assault is based mainly on both privacy and free-speech arguments. [It would be interesting to see if a gangland figure who is someday the subject of a Doe probe might similarly claim his privacy and free-speech rights are being violated by a closed-door, fact-gathering inquiry created on the basis of legally sufficient probable cause.]
Nevertheless, state and federal courts may very well kill the investigation, which outcome would serve to prevent any public reckoning based on, well, actual facts. Who needs the courts to hear criminal charges when you can go to those courts before any charges are filed and demand that prosecutors stop performing their legally assigned duties? Indeed, before an appeals court smacked him down, one federal judge listening sympathetically to the anti-Doe plaintiffs ordered the destruction of all evidence collected by the prosecutors, while they were still gathering it. So much for transparency and sunlight.
Under federal campaign law, super PACs can collect and spend unlimited money on political campaigns. However, they cannot coordinate that activity with specific candidates. Such big-spending political groups quickly developed after the US Supreme Court’s 2010 Citizens United decision, which erased federal limits on fund-raising and spending by “independent” political organizations.
Wisconsin state campaign laws remain more stringent than federal laws but conservatives aim to fix that ... the way you fix a purebred hound.
The most recent ruling, in a federal case unrelated to the Doe but which influences it, found that prosecutors cannot enforce Wisconsin campaign finance laws where PACs and other “independent” groups engage in so-called issue advocacy -- if, that is, their messaging only praises or criticizes specific candidates and doesn't overtly tell an audience exactly whom to vote for or against.
A student of logic might regard that as a difference without a distinction, but who thinks our laws these days are consistent or logical?
So far, state and federal courts seem for the most part to have bought into the conservative legal arguments that focus on privacy and free speech while essentially disregarding the aspect of illegal collusion, which -- based on the incomplete set of secret Doe documents revealed by court order -- seems a key avenue of inquiry pursued by prosecutors. Bank robbers, too, have First and Fourth Amendment rights, but that doesn't mean they can't be investigated after a bank is robbed.
So, to summarize: Can an individual who works both for a candidate's campaign and for an “independent” political action group helping that campaign possibly maintain any legally required separation between them? In Virginia, a court case says no. In Wisconsin, an attack on a constitutionally protected inquiry into the functioning of the Walker campaign so far has stymied any court case.
[Don't forget, by the way, that an earlier Doe probe of Walker's campaign produced half a dozen criminal convictions and information that in turn led to the current Doe proceeding.]
In a slick end-around, conservatives seek to evade accountability by restraining prosecutors from even gathering evidence, which would make it rather difficult for those prosecutors to ever develop a basis for issuing any charges. You prosecutors: See no evil, hear no evil, speak no evil. But you partisan campaigners? Go ahead. Be evil.
Meanwhile, Republicans in the Wisconsin legislature are piling on, conjuring new laws that would gut the investigatory powers of the state's election agency and limit Doe proceedings, while further packing the courts and limiting oversight. What could possibly go wrong?
This all portends further political rigging of our criminal justice system, and arguably amounts to a redefinition and expansion of the long-standing legal principle known as “prior restraint." As Cornell University Law School explains:
"In First Amendment law, a prior restraint is government action that prohibits speech or other expression before it can take place. There are two common forms of prior restraints. The first is a statute or regulation that requires a speaker to acquire a permit or license before speaking, and the second is a judicial injunction that prohibits certain speech. Both types of prior restraint are strongly disfavored, and, with some exceptions, generally unconstitutional."
Arguably the most infamous prior-restraint case in history was 1971's Pentagon Papers case, which came after whistle-blower Daniel Ellsberg turned classified documents about US involvement in Vietnam over to the New York Times and the Nixon administration fruitlessly tried to prevent the newspaper from publishing stories on those documents. That time, the US Supreme Court ruled against prior restraint.
Now, in the legal struggle over the Doe proceeding, Wisconsin and federal courts seem poised to create a new form of prior restraint, in which the government isn't trying to restrain speech, but, rather, prospective defendants in a criminal proceeding use the First Amendment to shield themselves from lawful government investigations. Under this new mutation of prior restraint, prosecutors are effectively prevented from looking into certain political -- and perhaps other -- conduct.
If conservatives succeed in constraining Wisconsin’s John Doe process, that could seriously constrain meaningful election law enforcement and transparency. Investigators might not be able to gather, much less consider, the facts regarding whether campaign law violations might have been committed. Or maybe, as well, other facts involving other violations of law unrelated to politics, say, for instance, white-collar crime. This is one hell of a prospective, slippery slope.
That Doe outcome would amount to a get-out-of-jail-free card for political campaign malfeasance, a card handed out in advance to people and organizations who will know they can flout the law at will and seldom, if ever, have to worry about anyone in authority looking over their shoulders.
You think you’ve already seen corruption in our political system? If this keeps up, you haven't seen anything, yet.