Mysteries of the John Doe investigation

The two John Doe investigations related to Scott Walker have produced more mysteries than answers so far. There is the mystery of the judges—why did they make so many bad decisions? There is the mystery of the right-wing lawyers—why did they file the Cindy Archer lawsuit and why does it seem designed for failure? And the mystery of Milwaukee County District Attorney John Chisholm—why has he been so reluctant to let the public know about the investigations?

This column discusses the first of these mysteries. Future columns will look at the other two mysteries and offer a stab at possible explanations.

The first mystery is why did Federal Judge Rudolph Randa and the four justices who voted to shut down the second John Doe investigation–Michael Gableman, Patience Roggensack, Annette Ziegler and David Prosser—see fit to declare, based solely on hearsay, that the subpoenas and search warrants issued by the John Doe judge were executed in an abusive manner. The second mystery is why the same five judges came up with a First Amendment theory so contrary to rulings of the US Supreme court.

The concurrence by Justice Ziegler offers a window into the world of the judges. Early on, she concedes, “I recognize that because no challenge has been made to the execution of the warrants, the record is without explanation as to why the search warrants were executed as they were.” She then proceeds to fill 25 pages condemning the way the search warrants were executed.

In her dissent, Justice Shirley Abrahamson takes note of this oddity: “I note at the outset that the statutory and constitutional issues presented in the John Doe cases do not include whether the subpoenas and search warrants issued by the John Doe judge were unconstitutionally overbroad or executed in an unconstitutional manner. The parties did not raise these issues and this court did not seek comment on them. These issues have not been briefed by some parties and have not been fully briefed by others. Nevertheless, these issues are discussed at length in the separate writings by Justices Prosser and Ziegler.”

The lack of briefing on his subject does not faze Ziegler, however. Instead, she depends on unsubstantiated assertions made in a series of articles published in the highly partisan National Review and on the Wisconsin Watchdog web site. Her assumption that anything published in the National Review must be true tells a lot about the mindset of Ziegler and her three concurring colleagues.

For some time, the National Review has been running a series on the John Doe investigations titled “Wisconsin’s Shame.” It is subtitled “the sordid tale of Wisconsin’s ‘John Doe’ investigations, in which partisan prosecutors launched expansive — and unconstitutional — campaigns of harassment against Badger State conservatives.” Ziegler depends on that series for her information on the investigation.  

To read the National Review is to enter another world. Most notable is not its conservatism, but its desire to control the information its readers receive. Rather than even attempting to lay out the evidence on an issue, it presents only evidence that supports its favored position. The approach is particularly effective when the subject one that plays into its readers’ world view, such as perfidious liberals who are out to undermine the Constitution.

When articles do confirm their world view, the readers are remarkably credulous and uncritical. Of the several thousand comments on one of the John Doe articles, only a handful raised questions about the assertions. A more skeptical reader might note that the accusations about the execution of the search warrants are based entirely on unverified assertions.

Ziegler’s concurrence makes it clear that she should be counted among the National Review true believers. While the other judges who adopted the majority decision are less explicit, the evidence suggests that they too depend on it—and like-minded publications–for their world view.

One piece of evidence is that all five of the judges regard as heroes O’Keefe, the Wisconsin Club for Growth, and the other organizations and individuals suspected of coordinating with the Walker campaign. The Wisconsin Supreme Court decision described them as “these brave individuals.” Randa praises them for having “found a way to circumvent campaign finance laws” in the interest of free speech.

Another sign that the judges have adopted the National Review world view is their consistent use of the term “issue advocacy” for messages meant to influence an election, so long as they avoid terms such as “vote for” or “defeat.” This term, promoted by the National Review and others trying to eliminate the remaining restrictions on political spending, makes such messages appear much less political than they actually are. It obscures the fact that many “issue ads” are often identical to ads put out by a candidate’s own committee. The use of the term misleads the reader into believing such ads are part of an innocuous discussion of issues.

The US Supreme Court, by contrast, avoids this term in its decisions. It is under no illusions that the so-called “issue advocacy” is politically innocuous. As it commented in the Buckley decision: “It would naively underestimate the ingenuity and resourcefulness of persons and groups desiring to buy influence to believe that they would have much difficulty devising expenditures that skirted the restriction on express advocacy of election or defeat but nevertheless benefited the candidate’s campaign.”

Unlike the US Supreme Court, Judge Randa uses the term “issue advocacy” repeatedly in his decision to end the investigation, as does the Wisconsin Supreme Court’s majority decision.

Thus it seems clear that not only is Justice Ziegler a true believer, but so are Judge Randa and Ziegler’s three colleagues who joined the decision stopping the investigation. They saw no need for a hearing on the facts regarding the searches because they already “knew” that “brave individuals” were being persecuted for their political beliefs. Thus they leapt at the chance to stop that persecution despite the glaring appearance of conflicts of interest created by the extraordinary expenditures made by some of the plaintiff organizations to help these justices get elected. 

The sympathy the judges felt for those being investigated also helps explain why they ignored the US Supreme Court’s rulings when it came to the legal question of how to treat coordination between candidates and outside groups.

In Buckley and the election financing cases that followed, the US Supreme Court ruled against a number of federal regulations on political spending. However, it specifically approved a federal regulation on spending by outside groups if coordinated with candidates. The rule treats such coordinated spending as a contribution to the candidate, which the campaign must report and is subject to the campaign’s contribution limit. Not only did the court approve this rule, but it referred to it as a reason that a spending limit on independent expenditures that did not explicitly advocate the election or defeat of a candidate could be overturned.

This rule remains part of the federal election code. In fact, the Walker Super-PAC, Unintimidated, until recently had a note on its web page explaining that it didn’t coordinate with any candidate (it seems to have been recently removed).

In its decision reversing Judge Randa, the 7th Circuit Court of Appeals summarized the rationale behind the limitation on coordinated activity: “If campaigns tell potential contributors to divert money to nominally independent groups that have agreed to do the campaigns’ bidding, these contribution limits become porous, and the requirement that politicians’ campaign committees disclose the donors and amounts becomes useless.”

David Rivkin, the attorney who represented the appellants in the Wisconsin Supreme Court appeal and also in the federal court suit upon which Judge Randa ruled in defiance of the U.S. Supreme Court, is probably the foremost proponent of the view that the First Amendment only allows the regulation of coordinated spending when it involves express advocacy. Rivkin is a regular contributor to the National Review as well as serving as lead attorney in a variety of right-wing causes, including the attack on the John Doe investigations. Rivkin argues that because the groups under investigation “engaged only in issue advocacy and not express advocacy at all times relevant to the investigation, the coordination theory proposed cannot extend to its activities. Both Wisconsin law and the First Amendment preclude this application.”

Rivkin then resorts to outright lying: “The Supreme Court applied these principles to federal provision substantially identical to the Wisconsin statute and held that the provision would be unconstitutional unless restricted in its scope to express advocacy. See Buckley v. Valeo ….”

In his decision, Randa solved the consistency problem by quoting language from a Clarence Thomas concurring opinion that claimed the US Supreme Court effectively reversed the distinction between contributions and expenditures. In reversing Randa, the 7th Circuit Court of Appeals had to explain that “Justice Thomas wrote separately ….. precisely because a majority was unwilling to revisit that aspect of Buckley.”

In their decision ending the John Doe investigation the four Wisconsin Supreme Court justices don’t acknowledge or address the conflict between their decision and that of the US Supreme Court. My guess is that rather than reading the Buckley decision themselves they took as settled Rivkin’s assurance that their decision was consistent with Buckley. (The alternative explanation, that they read it and ignored it, is surely more damning.)

The decision from the Wisconsin Supreme Court is exactly what could be expected if it had been turned over to a randomly-selected panel of National Review readers, who depended on the magazine both for their facts and for their interpretation of the US Constitution.