Thursday, July 16, 2015

John Doe decision means you don't have the right to know

Like anyone else that gives a shit about democracy and this state, I'm obviously outraged by the John Doe decision. Not as much for the expected "issue advocacy" garbage reasoning that the corrupt WMC-bought judges used to try to let Gov Walker and his oligarch buddies off the hook, but because of a provision that orders the destruction of evidence in the case. It screams cover-up, and goes to the heart of the message that right-wingers have on the subject of open government- you, the people do not have a right to know who's influencing us, and what we're really up to. Nixon lives, folks.

I'll let others that are better at law and the written word take it from there. For the technical side of the decision, I'll direct you to Rick Hasen's Election Law Blog, which explains why this is such a damaging decision if it is allowed to stand.
Gutting of campaign finance. The conservatives on the Court have held that Wisconsin’s existing campaign finance laws violate the First Amendment to the extent they limit coordination between a candidate and any group, even a 501c4 group not disclosing its donors, on campaigns to support that candidate. The only thing the nominally outside group has to do is to avoid words of express advocacy or their functional equivalent. Avoiding express advocacy while vigorously supporting a candidate, as we know from the federal period before McCain-Feingold, is child’s play. That is, a candidate can now direct unlimited contributions to a nominally outside group and tell that group what ads to run, when, and how. If you think it is a problem for someone to be able to give millions of dollars directly to a candidate to support that candidate’s campaign, then this should be very troubling to you. It was a theory of coordination strongly rejected by the 7th Circuit in the federal version of the John Doe case. And there’s no prospect that the Wisconsin legislature, dominated by Republicans and already weakening campaign finance law, will fix this. This applies only to Wisconsin elections (and not federal elections in Wisconsin) but is very, very bad news. (More analysis in my earlier Slate piece.)

Conservative harassment. For months, conservatives have been sending me stories for ELB purporting to show the horrors of the investigation (late night raids, etc.) However, these stories were never fully verified. As the Milwaukee-Journal Sentinel editorialized about the selling of this story: “A breathless article in the conservative National Review. An equally breathless report by Megyn Kelly on Fox News. Tart comments from Gov. Scott Walker on the campaign trail in Iowa…. Conservatives targeted by the John Doe investigation for more than a year have declined to discuss their concerns with the Journal Sentinel or other independent news outlets that will seek out all sides to a story. They have told their stories only to partisan outlets that share their political agenda, such as Fox News, the National Review and The Wall Street Journal’s editorial page (not its news staff).” Now the conservatives on the Supreme Court have validated this version of events, and without full transparency the stories cannot be fully investigated. One Justice even went so far as to reach the issue of the constitutionality of the nighttime raids even though the issue was not before the Court. (I would love that Justice to ride along with police in the poorer parts of Milwaukee at night and perhaps gain some appreciation of what others face from law enforcement every day.) In the meantime, they fit into a conservative meme of persecution for conservative ideas. Expect this to lead to calls for even more laws to be struck down out of fear of persecution, fears which generally do not stand up to scrutiny.

Recusal? We know that one of the prosecutors in the case asked at least one of the Justices who decided the case to recuse because the Justice may have been supported by some of the campaign spending in the case. As the dissenting Justice Abrahamson notes, the majority did not even respond to the issue. It seems to me that this at least deserves a response as to why recusal is not warranted.

U.S. Supreme Court review? The dissent [written by former Chief Justice Shirley Abrahamson] notes that under the U.S. Supreme Court’s Caperton decision, the failure to recuse in this case could be a due process violation. At least theoretically, that’s an issue which could go to the U.S. Supreme Court. The Court could also potentially consider the First Amendment holding about coordinated issue advocacy. My guess is that the Court will decline review in this case, and frankly, given this Supreme Court on campaign finance issues, I’d be very afraid of having this issue before this Supreme Court. I mean I think Justice Kennedy would consider coordinated issue advocacy to be regulable, but I don’t know that I’d be the entire country’s campaign finance system on it.
I couldn't disagree with this last statement more. This thing has to be appealed to SCOTUS, if for nothing else to ask the question "Is it legal to launder money and hide donors in the name of "free speech"?" Make the justices say it, and make the right-wingers publically support that, and see how well it flies with a very angry public.

As part of the right-wing victimization meme that Hasen mentions, there will likely be another WisGOP attempt to try to mess with the Government Accountability Board, as punishment for allowing this investigation to go on. But as GAB Chair Gerald Nichol mentioned today, the organization was merely following what the law was until 4 WMC judges decided to rewrite it this morning.
Today’s Wisconsin Supreme Court decision reverses a longstanding interpretation and application of campaign finance law that has been followed by the former State Elections Board and the Government Accountability Board since the U.S. Supreme Court’s Buckley v. Valeo decision in 1976. It also reverses a 1999 Wisconsin Court of Appeals decision that backed the state’s interpretation of the law, which the Board has relied on in its advisory and enforcement decisions.

In light of recent federal court decisions, in January of this year the G.A.B. unanimously passed a resolution requesting that the Legislature undertake a comprehensive review and revision of Wisconsin’s campaign finance law. The Board also suggested that the best approach to this endeavor would be through the establishment of a Legislative Council study committee. Today’s decision reinforces the need for that comprehensive review.
Somehow I'm guessing the GOPs in the Legislature aren't going to use the coming month in cleaning up disparities in election law and allow this to be a chance to improve confidence to the people that their politicians aren't being bought by dark money. Although if the Wisconsin Dems had a brain, you'd think it would be a good time to bring it up.

I'll end this post with the great Charlie Pierce, who distilled the decision and its obvious corruption in the clear way that far too many are able to do.
In February, the special prosecutor asked that one or more justices drop out of the case, presumably because they have benefitted from spending by the Wisconsin Club for Growth and Wisconsin Manufacturers & Commerce. The Wisconsin Club for Growth is estimated to have spent $400,000 for Ziegler in 2007; $507,000 for Gableman in 2008; $520,000 for Prosser in 2011; and $350,000 for Roggensack in 2013. WMC spent an estimated $2.2 million for Ziegler; $1.8 million for Gableman; $1.1 million for Prosser; and $500,000 for Roggensack. In addition, Citizens for a Strong America — a group funded entirely by the Wisconsin Club for Growth — spent an estimated $985,000 to help Prosser. The spending estimates come from the Wisconsin Democracy Campaign, which tracks political spending. The justices did not give a reason for why they don't view that spending as a conflict, but court rules say political spending on its own is not enough to force a justice off a case.

If you're keeping score at home, the same organizations that were the subject of the criminal probe gave hundreds of thousands of neatly laundered dollars to the judges who ruled that those same organizations did nothing wrong on behalf of Scott Walker because fk you, that's why. If this happened in Myanmar or Kazakhstan, we'd all be laughing at it. Instead, let's once again congratulate Justice Anthony Kennedy for his immortal observation that: "...independent expenditures do not lead to, or create the appearance of, quid pro quo corruption."

So Walker's winning streak goes on, even though it is identical in its authenticity to those winning streaks once put up by the Harlem Globetrotters over the Washington Generals, or Hulk Hogan over the rest of professional wrestling. His presidential campaign is going to have to crater on its own which, if Walker keeps stepping on his own dick, may well be inevitable.
Yeah, Scotty might try to play victim to get a few more votes from dimwitted GOP rubes in the coming days and weeks, and maybe some will fall for it. But I'm thinking his foolish statements, flip-flopping and failed policy will outweigh whatever small bump he might get inside the right-wing bubble from today's disgusting decision from the Wisconsin Supreme Court.

1 comment:

  1. You do know the "payback", the "quid pro quo" for these Catholic legislators and Catholic justices, don't you? Banning abortion and flooding financially failing Catholic schools statewide with taxpayer money. They will willing to risk anything, even their career reputations, to bring this about.