Wisconsin Democracy Campaign
Press Release

3 DA’s Appeal John Doe

“This is great news for anyone who is concerned about money in politics,” said Matt Rothschild, the executive director of the Wisconsin Democracy Campaign.

By - Dec 18th, 2015 02:54 pm
John Chisholm. Photo by Grace Fuhr.

John Chisholm. Photo by Grace Fuhr.

The Milwaukee Journal Sentinel is reporting that the district attorneys of Dane, Iowa, and Milwaukee Counties have petitioned the Wisconsin State Supreme Court to join the John Doe II case investigating allegations that Gov. Scott Walker illegally coordinated with outside groups during the recalls.

The State Supreme Court invited such intervention when they fired Special Prosecutor Francis Schmitz on December 2. The court imposed a two-week deadline of December 4, which would have expired at the end of the day today.

“This is great news for anyone who is concerned about money in politics,” said Matt Rothschild, the executive director of the Wisconsin Democracy Campaign.

Dane County District Attorney Ismael Ozanne, Iowa County DA Larry Nelson, and Milwaukee County DA John Chisholm filed the petition, which is under seal.

The Wisconsin Democracy Campaign, for the past two weeks, has been urging citizens to contact these district attorneys to request that they join the case, and many people responded to this call.

“Now their calls have been answered,” said Rothschild, “and the case can be appealed to the U.S. Supreme Court.”

Rothschild says there are three strong grounds for appealing the decision of the State Supreme Court that shut down the John Doe.

1. Failure to recuse

The four conservative justices on the State Supreme Court benefited from $8 million in election expenditures by some of the very same groups that the prosecutor was investigating. Under the U.S. Supreme Court case, Caperton v. Massey Coal, at least a couple of those justices had an obligation to recuse themselves.

2. Blatant misreading of campaign finance precedents

The State Supreme Court in its July ruling legalized coordination between candidates and outside issue-ad groups, citing the First Amendment. But nowhere in 42 years of U.S. Supreme Court rulings, starting with Buckley v. Valeo in 1976, has the U.S. Supreme Court made this claim. In fact, the whole edifice of its campaign finance rulings depends on the distinction between direct donations to candidates, which can be limited because of their potential corrupting influence, and contributions to issue advocacy groups, which, because the candidate is not working with them, the Court has said are not as potentially corrupting and therefore can be unlimited.

As the U.S. Supreme Court ruled in Buckley, “The absence of prearrangement and coordination of an expenditure with the candidate or his agent . . . alleviates the danger that expenditures will be given as a quid pro quo.” And as it ruled in Citizens United in 2010: “By definition, an independent expenditure is political speech presented to the electorate that is not coordinated with a candidate.”

The Wisconsin State Supreme Court’s ruling is 180 degrees from these precedents.

3. Ignoring evidence of potentially illegal express advocacy coordination

In its July ruling, the Wisconsin State Supreme Court said candidates could not coordinate with “express advocacy” groups – those that say “vote for” or “vote against” people running for office. In his petition for reconsideration, Prosecutor Schmitz noted that there was evidence of express advocacy coordination and sought to keep the investigation open. As Justice Shirley Abrahamson noted in her dissent: “Evidence of coordinated express advocacy on which the Special Prosecutor relies was presented both to the John Doe Judge and to this court. The legal arguments and evidence the Special Prosecutor presented to the John Doe Judge and to this court provide ‘reason to believe’ a crime was committed by coordinated express advocacy. Accordingly, reconsideration should be granted and the investigation into coordinated express advocacy should continue.”

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