Data Wonk

John Doe Foes Worried About Appeal?

They’re concerned U.S. Supreme Court might review state court ruling killing Doe probe.

By - Mar 4th, 2016 03:22 pm
Brad Schimel. Photo courtesy of the State of Wisconsin.

Brad Schimel. Photo courtesy of the State of Wisconsin.

Now that the Wisconsin Supreme Court has shut down the John Doe investigation of coordination between the Walker campaign and various outside groups, what are the chances an appeal to the U.S. Supreme Court will succeed? The appeal has been widely dismissed as a long shot, both in the press and among members of a network of anti-Doe conservatives. For example, as part of his tour of right-wing media, Wisconsin Attorney General Brad Schimel told conservative radio host Vicki McKenna that “every legal expert believes that the likelihood of the U.S. Supreme Court taking this case is almost nil.”

Skepticism about the appeal’s chances starts with simple statistics. According to its website, the U.S. Supreme Court “accepts 100-150 of the more than 7,000 cases that it is asked to review each year.” This puts the odds of acceptance at around one or two percent. But there are two reasons to question these discouraging odds.

For starters, the process is open to anyone who is “not satisfied with the decision of a lower court …” Since anyone can submit a petition, called a “writ of certiori,” it is likely most do not satisfy the court’s criteria.

Secondly, many cases don’t fit the court’s criteria for which appeals to accept, as its website notes:

The Court usually is not under any obligation to hear these cases, and it usually only does so if the case could have national significance, might harmonize conflicting decisions in the federal Circuit courts, and/or could have precedential value. … Typically, the Court hears cases that have been decided in either an appropriate U.S. Court of Appeals or the highest Court in a given state (if the state court decided a Constitutional issue).

Two issues would seem to fit these criteria: the inconsistency between the Wisconsin and the U.S. Supreme Courts’ interpretation of the First Amendment and the failure of the Wisconsin justices to recuse themselves despite the huge amount of money the organizations subject to the investigation had spent in support of these justices’ election. I would expect the appeal, currently due April 29, to raise both these issues. Although either or both issues seems likely to raise the concerns of at least four justices (the number needed to accept a case), I will concentrate on the first.

Starting with its Buckley v. Valeo decision in 1976, the U.S. Supreme Court has stated repeatedly that, although the First Amendment protects truly independent political expenditures, the government is entitled to regulate coordination between candidates’ campaigns and purportedly independent groups. The U.S. Supreme Court has never made a distinction based on whether or not that coordination involved explicit endorsement of a candidate. In fact, the court has repeatedly referred to the lack of coordination as a reason that other restrictions on independent “issue advertising” could be safely eliminated. The 7th Circuit Court of Appeals referred to this as “Buckley’s interpretation of the First Amendment.”

During the course of Eric O’Keefe’s challenge to the John Doe investigation, David Rivkin, his lead attorney, advanced an alternative interpretation, that the limit on coordination only applied to explicit communications, those that explicitly advocated the election or defeat of a particular candidate. Under this doctrine, coordination between the Walker campaign and the outside groups would be allowable if it, for instance, led to ads defending Act 10.

The Rivkin doctrine had its first success when Reserve Judge Gregory Peterson replaced Barbara Kluka as the judge overseeing the John Doe investigation. Peterson used it as the basis for quashing subpoenas against Republican consultants R. J. Johnson and Deborah Jordahl.

From his own words, it appears Peterson did not take the decision very seriously. He refers to the need for a speedy decision and notes that “Any reviewing court owes no deference to my rationale, so giving the parties a result is more important that [sic] a delay to write a lengthy decision on election and constitutional law. For more detail, readers should consult the parties’ briefs.” Later he says that Rivkin’s “analysis of the campaign financing statutory scheme is particularly helpful.”

The Rivkin doctrine also enjoyed success in a federal suit before Judge Rudolph Randa. Shortly after the Randa decision, I wrote a column suggesting this decision was unlikely to survive an appeal to the U.S. Supreme Court.

Sure enough, a three-judge panel of the 7th Circuit Court unanimously rejected the Rivkin interpretation of the First Amendment, pointing out that the U.S. Supreme Court had never made such a distinction when it came to regulation of coordinated activity. Appeals to the full 7th Circuit and the U.S. Supreme Court were rejected.

Despite the lack of success for the Rivkin doctrine in the federal courts, a four-justice majority of the Wisconsin Supreme Court embraced the Rivkin interpretation and shut down the John Doe investigation. Resolving the conflict between the Buckley and Rivkin interpretations would seem to demand resolution by the U.S. Supreme Court.

How might the U.S. Supreme Court rule? One possibility, suggested by the 7th Circuit, is the court might decide to replace the Buckley interpretation with Rivkin’s. This strikes me as unlikely, for two reasons.

One is that in decision after decision, the justices refer to lack of coordination as a reason to believe that laws removing restrictions on independent communications that don’t explicitly endorse a candidate hold less danger. To now turn around and say coordination can take place seems like bait and switch. It would be as if they said cars don’t need seat belts because they have airbags and then said they don’t need airbags.

Another reason is that it’s clear from past U.S. Supreme Court election decisions that the conservative authors put a very high priority on avoiding any regulation that depends on the content of a communication. To assure this they are willing to pay a high price—increased influence of money in elections. The Buckley interpretation has the advantage that it avoids the need to examine the content of communications that result from coordination: all coordination is coordination. The Rivkin interpretation requires a judgment as to what kind of communication resulted from the communication.

It appears that some members of the anti-Doe network led by O’Keefe are concerned the Rivkin legal theory may not find a receptive audience in the U.S. Supreme Court. In a recent letter to Schimel, Johnson and Jordahl argue that the “decision relied on state statutes in determining that Wisconsin has not chosen to regulate coordinated issue advocacy.”

The reason for this argument is clear. If the Wisconsin Supreme Court was based on some unique provision of the Wisconsin Constitution, it might survive a potential conflict with the First Amendment as interpreted by the U.S. Supreme Court.

Unfortunately for the Johnson/Jordahl argument, it is contradicted by the Wisconsin Supreme Court decision itself: “we hold that the definition of ‘political purposes’ in (the state statute) is unconstitutionally overbroad and vague under the First Amendment to the United States Constitution and Article 1, Section 3 of the Wisconsin Constitution..” A footnote quotes a court decision that “the freedom of speech rights protected under the Wisconsin and United States Constitutions are coextensive”—in other words both mean the same thing.

Rivkin himself contradicts the Johnson/Jordahl argument that the decision derived from some unique feature of the Wisconsin constitution. In his recent brief opposing a motion to preserve the evidence collected in Doe II, he notes the state supreme court ruled “that the prosecution team’s theory of criminal liability violated the United States and Wisconsin Constitutions.”

Another sign suggesting concern about the appeal is a campaign to convince Schimel to take command of the appeal, presumably so he could kill it. In their letter, Johnson and Jordahl make this argument. Others in the anti-Doe forces have joined this campaign, including radio talker Charlie Sykes, the rabidly anti-Doe Wisconsin Watchdog and McKenna.

There are also signs the four Wisconsin justices who ruled against the Doe are so concerned the U.S. Supreme Court might review the decision that they have thrown obstacles in the appeal’s path. Despite their statement they would “avoid impeding in any way the ability of the prosecution team to seek certiorari review in the United States Supreme Court,” they rejected a motion to share unredacted portions of the John Doe II record with attorneys seeking to appeal who are experienced in Supreme Court representation. (Notably, this law firm was successful in the very similar Caperton case that placed limits on the judges deciding cases where parties had spent large amounts promoting their election. The four Wisconsin justices making this decision had benefiting from millions of dollars in campaign spending by parties to the Doe case.)

Predicting what the U.S. Supreme Court will do is tricky. When it comes to granting writs of certiorari, it usually offers no explanation. All the same, there are strong reasons in this case to grant the writ.

Categories: Data Wonk, Politics

23 thoughts on “Data Wonk: John Doe Foes Worried About Appeal?”

  1. John Casper says:

    Bruce, terrific analysis.

  2. wisconsin conservative digest says:

    The left will never rest in their vendetta against Walker fro making them pay part of their health, pensions just like the rest of us. Left cares about power, money, not people/
    Look at Milwaukee. Larson v Abele. Larson only cares about who has the power not the kids in MPS, a democratic run “National disgrace.”
    Why should public employees get better salaries, pensions, health, dental, vacations, days off, holidays, sick days and on and early retirement plus you ca
    nnot fire one??

  3. jake says:

    Good old bait and switch. Can’t deal with the topic and immediately goes on to bash Milwaukee. Of course not realizing it’s troubles have gotten worse under the Fascists WCD blindly supports.

  4. TJP says:

    “Another sign suggesting concern about the appeal is a campaign to convince Schimel to take command of the appeal, presumably so he could kill it. In their letter, Johnson and Jordahl make this argument. Others in the anti-Doe forces have joined this campaign, including radio talker Charlie Sykes, the rabidly anti-Doe Wisconsin Watchdog and McKenna.”

    Can someone explain how he would do that?

  5. Bill Sweeney says:

    Bruce Thompson-Many thanks for doggedly pursuing this as it is extremely important. I would like to second TJP on that point as I don’t quite follow what you mean so if you could expand upon it, that would be helpful. And do you have any idea as to a timeline on this appeal, when it might be accepted or denied?

  6. March Madness says:

    Regarding public pensions, benefits were accepted in lieu of lower salaries. Then, when public employees were forced to pay more for benefits, this had the effect of lowering their entire compensation package. This is exactly the same as in private business.

    Therefore, Gov Walker forced public employees to take a significant cut in their overall compensation package.

    And I, too, find it interesting that you try to deflect from the likelihood that the SCOTUS will take up the John Doe case, finally bringing justice to the pols and courts who tries to break the law with corrupt political expenditures. The public sees what has been going on in WI very clearly. The GOP is very concerned…as well they should be. Criminal punishment looms large for everyone associated with these political expenditures and it will hurt GOP incumbents all up and down the ticket.

  7. wisconsin conservative digest says:

    Milwaukee is great place, people we love, it s leaders are not. Incompetent, corrupt, nutty.
    But I do love to hear the Left whine. 7 judges, 5 courts have tossed it out. Are they going to have to pay taxes on this suit?? It is unethical for them to make money and not pay taxes. The value could be millions.

  8. Barbara says:

    TJP, he would do it quite simply by benign neglect.

    Bruce, thanks for another terrific piece of journalism.

    WCD, you don’t sound rational.

  9. podman says:

    Thanks for the explanations and the continued coverage of the ongoing litigation. Election laws should be a concern to the US Supreme Court so as every state understands and complies aside from which political party is in control of the state.It is why we have the judicial third of government.

  10. John Casper says:

    WICon Digest,

    You’re not a conservative. The elites buying government is not a conservative position.

  11. wisconsin conservative digest says:

    John, you are right so tell that to Hillary and Bill, Gates, Soros, Buffet and all the dems that get money from the big banks, wall street. Did obama get money from waitresses, coal miners.? A billion dollars?
    Koch brother are like 27th on big money list, dems own all the top spots cause banks love them they spend so much money.

  12. blurondo says:

    I’ve never seen anyone catagorized as a “rabid dog” more succinctly and tastefully.

  13. wisconsin conservative digest says:

    Barb, if I were rational, all the Lefties on this page would not understand what i talk about. Mainly a corrupt Milwaukee that is disintegrating like Detroit.

  14. Barbara says:

    So, WCD, we agree you aren’t rational. Further, you’re completely off point in this discussion. Finally, please don’t post what you aren’t able to substantiate, although you don’t seem to have an actual point to substantiate. Name calling doesn’t count.

  15. John Casper says:

    WI Con Digest at 8:21

    WRT compensation for law enforcement, firefighters, paramedics, other public sector workers, capitalists understand that in order to attract and retain quality, the wage and retirement package has to be competitive.
    “Barney’s Gun”

    GOP’s been running Muskogee, OK for a long time. They are doing worse than Baltimore.

    “Sex, Drugs and Poverty in Red and Blue America”

    What happened to Wisconsin’s billion-dollar a year commercial fishing industry? “The Decline of a once Great Fishery”

    When will Gov. Walker and WIGOP fix that?

    WI Con Digest at 10:43,

    “Koch brother(sic) are like 27th on big money list”
    In God we trust. All others bring links. How much did each Koch brother inherit from their Dad?
    AFAK, Soros started with nothing. Other than great educations, I don’t know how much help Buffett or Gates got from their families.Do you have a link that says different?

    WI Con Digest at 10:48

    Among a variety of causes, rust belt came from elites crushing domestic and international labor unions. As President Reagan understood, in order for U.S. exports to flourish, foreign workers have to be able to afford them.

    90-second video of “President Reagan saying there is no freedom, without collective bargaining.”

    “These are the values inspiring those brave workers in Poland, the values that have inspired other dissidents under communist domination, who have been willing to go into the gulag and suffer the torture of imprisonment, because of their dissidence. They remind us that where free unions and collective bargaining are forbidden, freedom is lost… They remind us that freedom is never more than one generation away from extinction. You and I must protect and preserve freedom here, or it will not be passed on to our children and it will disappear everywhere in the world. Today, the workers in Poland are showing a new generation how high is the price of freedom, but also how much, it is worth that price. I want more than anything I’ve ever wanted, to have an administration that will through its actions, at home and in the international arena, let millions of people know, that Miss Liberty, still lifts her lamp beside the golden door.”

  16. Bruce Thompson says:

    Several commenters asked about the effort to get Attorney General to take control of the appeal to the US Supreme Court. This is reflected in a letter from In a letter to Schimel from RJ Johnson and Deborah Jordahl. After arguing that only the attorney general can represent Wisconsin, they close with the following paragraph:
    “It falls to you and your office, then, to meet its statutory duties and take control of the representation of the state in this case for the balance of this appeal. Whether one or more District Attorneys seek to intervene or not, the State of Wisconsin is a party in interest in any further proceedings on these appeals and the party that would be pursuing certiorari. The state has no legitimate interest in seeking a writ of certiorari in the United States Supreme Court. That, in any event, is your decision to make, and no one else’s.”
    In his visits with right-wing media, Schimel argues against his taking control because, as he told Sykes, it is “probably the slowest route for getting the property back to the property owners because in order for us to stop the intervenors, we would have to file a petition with the Wisconsin Supreme Court challenging their intervention.”
    My guess is he may have been told that such an intervention would be improper, but that is just my speculation.

  17. John Casper says:

    Bruce, much appreciate the added detail on Johnson Jordahl.

    Has anyone tried to estimate the income they took in?

    Perhaps a more interesting angle is how much control the for-profits, such as Johnson Nordahl, exerted over the wingnut 501(c3)’s.

  18. Jake says:

    Government to the highest bidder. The WCD way. Situational principles born out of the desperation to defend regardless of guilt.

  19. Jake says:

    Next we will see WCD raise his right hand and pledge loyalty to Trumpy, just because he’s a conservative I guess.

  20. wisconsin conservative digest says:

    All the Lefties are crossing over to Trump. Want to find out about selling out, Obama and Hillary sold out to Wall Street long time ago, ask Bernie.
    Think they raised a billion dollars from the painters union?

  21. Matt says:

    “All the Lefties are crossing over to Trump.” Has got to be the most ill-informed ignorant statement I’ve heard you make thus far. Where do you come up with this stuff WCD?

  22. wisconsin conservative digest says:

    No oneo n this site has any knowledge, just warped Left opinions. It is happening all across country, also in wisconsin.

  23. Vincent Hanna says:

    The claim that Democrats are backing Trump was rated Pants on Fire by Politifact.

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