John Doe lives? New SCOTUS decision sure seems to apply

Yesterday, the US Supreme Court released its list of cases it would choose to take in the near future, as well as ones that it wouldn’t, which made lower court rulings stand. But there was one case that stood alone in a different category.

(ORDER LIST: 580 U.S.)


MONDAY, FEBRUARY 27, 2017
APPEAL -- SUMMARY DISPOSITION
16-743

INDEPENDENCE INSTITUTE V. FEC
The judgment is affirmed.

The Independence Institute is a Koch-like stink tank in Colorado that wanted to run ads calling out Democratic US Senators by name during the 2014 and 2016 elections, but ran into conflict with McCain-Feingold rules that said they had to give the names of their donors if they did so. They tried to argue that they weren’t saying the “magic words” of vote for or vote against [aka “issue advocacy” instead of “express advocacy”], and therefore didn’t have to give up the donor information.

SCOTUS basically agreed with the appellate courts and told the Independence Institute they do have to reveal their donors if they’re singling out candidates by name. Marquette Law Professor and former Supreme Court Justice candidate Ed Fallone points out that this week SCOTUS’s decision shows the Wisconsin Supreme Court was dead wrong when it decided to end the John Doe investigation last year.

In other words, the Wisconsin Supreme Court held that it violates the First Amendment to prevent political candidates from coordinating with outside spending groups in situations where the outside group does not expressly advocate the election or defeat of a candidate. The rationale offered in support of this holding was that U.S. Supreme Court precedent had limited the scope of permissible campaign finance regulation to the regulation of express advocacy, and that regulation of conduct outside of that scope (such as issue advocacy) therefore ran afoul of the First Amendment. Critics of the Wisconsin Supreme Court’s opinion were quick to point out that U.S. Supreme Court precedent does not stand for any such proposition, and that the contention by the Wisconsin Supreme Court that the John Doe prosecutor’s case was “unsupported in either reason or law” was clearly incorrect…

Today’s action summarily affirmed the decision of a Three Judge Panel of the U.S. District Court for the District of Columbia. The panel’s decision rejected the argument of the Independence Institute that the law at issue should be limited to express advocacy and that the law should be interpreted in such a way that issue advocacy was permitted to go unregulated. The panel explained:

[T]he Supreme Court and every court of appeals to consider the question have already largely, if not completely, closed the door to the Institute’s argument that the constitutionality of a disclosure provision turns on the content of the advocacy accompanying an explicit reference to an electoral candidate. In McConnell, the Supreme Court concluded that First Amendment precedent “amply supports application of [the Act’s] disclosure requirements to the entire range of `electioneering communications.‘” . . . In so doing, the Court specifically “rejected the notion that the First Amendment requires Congress to treat so-called issue advocacy differently from express advocacy[.]” . . . Likewise, in Citizens United, the Supreme Court ruled that advocacy — even if it takes the form of commercial speech — falls within the constitutional bounds of the donor-disclosure rule precisely because that advocacy points a finger at an electoral candidate. . . .

Under McConnell and Citizens United, then, it is the tying of an identified candidate to an issue or message that justifies the Bipartisan Campaign Reform Act’s tailored disclosure requirement because that linkage gives rise to the voting public’s informational interest in knowing “who is speaking about a candidate shortly before an election.” . . . Indeed, it is telling that, in defining a “genuine issue ad” in Wisconsin Right to Life, the Supreme Court stated that such an advertisement would not “mention[] * * * candidacy” or a “challenger.” Accordingly, it is hard to see any constitutional daylight between the Institute’s issue advertisement and the issue advocacy to which the Supreme Court has already held that the Act’s disclosure requirements can permissibly be applied.”

In summary, the panel stated exactly what the critics of the Peterson John Doe decision have said all along: there is simply no support for the argument that the U.S. Constitution limits campaign finance regulation to rules addressing express advocacy. If anything, the reasoning of the D.C. Circuit in Independence Institute strengthens the legal argument of the special prosecutor in the John Doe proceeding. If the requirement to disclose the identities of donors who support issue advocacy groups is constitutional, because of the public interest in knowing who is speaking about a candidate shortly before an election, then a requirement that prohibits coordination between issue advocacy groups and candidate campaigns must also be constitutional because it advances the very same public interest. By affirming the decision of the Three Judge Panel, the U.S. Supreme Court has raised more questions about the reasoning which the Wisconsin Supreme Court used to resolve the John Doe Investigation.

In other words, the Wisconsin Supreme Court’s decision and “reasoning” on John Doe was largely pulled out of their ass (and from right-wing chop shops like the Federalist Society) as a justification to allow Republican hack politicians (and maybe some of the “Justices” themselves?) to sneak away without prosecution.

Which again makes the current SCOTUS group total cowards for not taking the case, since the John Doe decision in Wisconsin established a new precedent that SCOTUS needed to clear up for future situations such as what we saw in the Independence Institute case. Based on the SCOTUS ruling today, it sure seems like the “WMC 4” would have had their decision struck down, unless the SCOTUS justices decided to duck the issue and somehow claim a “1st Amendment” case didn’t apply to state laws (an idea that has been largely out of fashion for more than 200 years).

Oh, and speaking of the John Doe case, the Wisconsin Democracy Campaign noticed who is coming to a Republican fundraiser up North in a couple of weeks.

Wisconsin Supreme Court Justice Michael Gableman, who penned the court opinion that ended the controversial John Doe probe of Scott Walker’s campaign activities, is one of the featured speakers at a Republican Party fundraiser – along with the head of a shadowy rightwing group that the John Doe prosecutor was reportedly looking into. That group, Wisconsin Club for Growth, spent more than half a million dollars to get Gableman elected in 2008.

Gableman, who is among the court’s 5-2 conservative majority and faces reelection next year to a second 10-year term on the court, is scheduled to appear March 11 at the Barron County Republican Party’s Lincoln Day dinner in Rice Lake.

In addition to Gableman, the director of the Wisconsin Club for Growth, Eric O’Keefe, will also be a keynote speaker at the event….

Gableman also received an estimated $500,000 in outside electioneering support from the Wisconsin Club for Growth, and $8,500 in direct contributions from the group’s political action committee during his 2008 race.

I’m sure this is all coincidence, isn’t it Mikey? Sure makes you want to see the full, unredacted John Doe docs to connect the dots, doesn’t it?

You know, if Dem prosecutors like Milwaukee County’s John Chisholm and Dane County’s Ismael Ozanne played hardball and looked to score partisan points like GOP hacks such as AG Brad Schimel, they’d see this new decision by SCOTUS and DROP THE BOMB. They should file charges against O’Keefe and other RW oligarchs for failing to disclose required donor information, and include all of the John Doe information as part of the criminal complaint that the public can read. Let those Koch-backed scumbuckets argue the now-unconstitutional viewpoint of “it’s issue advocacy, not express advocacy” in the court of public opinion. See how far it gets them outside of AM radio Bubble World.

Kinda makes me wish Dems could be as scummy and arrogant as Republicans. That’s a lesson I’ve gleaned from the last 6 years in Fitzwakerstan. When the GOP goes low and illegal, we should kick them in the teeth and file charges against those crooks if we have a chance, instead of “trusting the system.” Maybe it’s not too late to take that route when it comes to John Doe after all.