Are John Doe Subjects Still Coordinating?

It’s a simple question, one that probably can be answered “Yes” or “No.”

Given that Wisconsin Gov. Scott Walker and his supporters have so stridently affirmed their right to coordinate campaign activities with groups engaged solely in “issue advocacy,” will they be doing so in the upcoming fall election?

“There is nothing wrong with what we did,” Walker asserted, after newly released documents suggested, perhaps hyperbolically, that he was part of a “criminal scheme” to coordinate activities between Republican campaigns and conservative groups during the 2011 and 2012 recall elections.

Walker called the suspended John Doe probe into these activities an “incredible abuse of power by a partisan prosecutor.” He neglected to mention that the special prosecutor heading the probe, Francis Schmitz, has identified himself as a Republican who voted for Walker in the recall.

While later clarifying that Walker himself was not a target of the probe, Schmitz has alleged in court filings “an extensive coordination scheme that pervaded nearly every aspect” of the recall campaigns. He said there were “open and express discussions” to coordinate the activities of groups including Americans for Prosperity, Wisconsin Club for Growth and the Republican Party of Wisconsin.

Schmitz asserts that coordinated activities with groups engaged in issue advocacy are subject to state election laws and should be reported as in-kind contributions. The ones under review from 2011 and 2012 were not.

The groups under investigation insist the prosecution is wrong. Coordination between campaigns and outside groups that do not expressly tell people how to vote, they say, is constitutionally protected. A state and federal judge have issued rulings that embraced this interpretation.

“Both judges said they didn’t buy the argument,” Walker told Fox News. “They didn’t think anything was done that was illegal” and halted the investigation. “No charges, case over.” He called the matter “resolved.”

Walker is partially right: Two judges did reach this conclusion. But his assertion that the legal issues are therefore settled was branded “false” by PolitiFact Wisconsin, which truth-tests political claims. Both rulings are being appealed and could be overturned.

One indication that Walker and others don’t really consider the matter resolved is their reticence to say whether they are still engaging in coordination — activity they contend is perfectly legal.

Walker campaign spokeswoman Alleigh Marre did not respond to emails asking this question. Neither did a spokesman for the Republican Party of Wisconsin. Representatives of Wisconsin Club for Growth also passed up chances to comment. Walker has said he raised money for Club for Growth during the 2011 Senate recalls but is not now doing so.

Meanwhile, spokespeople for the Democratic Party of Wisconsin and Mary Burke, Walker’s likely Democratic challenger for governor, both told the Wisconsin Center for Investigative Journalism they absolutely will not be engaging in coordination with outside groups.

Mike McCabe, executive director of the nonpartisan Wisconsin Democracy Campaign, says it appears from the released records that Walker and others “are admitting they engaged in coordination,” while contending it is legal. In his view, however, “It has been settled law for a very long time that this activity is illegal.”

And while McCabe allows that the players involved in the John Doe probe “may be reckless enough or arrogant enough to believe” they can continue coordinating, he doubts that will happen. “A reasonable person, a cautious person, would abstain from this activity when they face the possibility and perhaps even the likelihood that their legal theory is going to be shot down.”

Rick Esenberg, president of the conservative Wisconsin Institute for Law & Liberty and critic of the John Doe probe, also suggests continued coordination is unlikely, given the prosecution’s use of heavy-handed tactics based on “a very aggressive theory” of what constitutes illegal activity. “I suspect that no one should feel free to do anything,” he says. “They ought to, but how can they?”

Bill Lueders is the Money and Politics Project director at the Wisconsin Center for Investigative Journalism (www.WisconsinWatch.org). The Center produces the project in partnership with MapLight.

The Center collaborates with Wisconsin Public Radio, Wisconsin Public Television, other news media and the UW-Madison School of Journalism and Mass Communication. All works created, published, posted or disseminated by the Center do not necessarily reflect the views or opinions of UW-Madison or any of its affiliates.