A secret court ruling in the “John Doe” probe into campaign finance violations during Wisconsin’s 2011 and 2012 recall elections could have implications well beyond the investigation — if news reports from anonymous sources are accurate. Earlier this month, the Wall Street Journal editorial board reported that Wisconsin Judge Gregory Peterson had quashed subpoenas issued to Wisconsin Club for Growth and Citizens for a Strong America in the closed-door John Doe criminal investigation (which operates like a grand jury except in front of a judge), on grounds that it was not illegal for these supposedly independent groups to coordinate with the Walker campaign — since their ads supporting Walker’s reelection did not expressly tell viewers to “vote for” Walker or “vote against” his opponent. Wisconsin Club for Growth spent at least $9.1 million on these “issue ads” supporting Walker and legislative Republicans during the 2011 and 2012 recall elections, and in turn shuffled millions more to Citizens for a Strong America, which funnelled the money to other groups that spent on election “issue ads.”
The editorial board wrote on July 10:
“Wisconsin’s campaign finance statutes ban coordination between independent groups and candidates for a “political purpose.” But a political purpose “requires express advocacy,” the judge wrote, and express advocacy means directly advocating the election or defeat of a candidate. “There is no evidence of express advocacy” and therefore “the subpoenas fail to show probable cause that a crime was committed,” Judge Peterson wrote. Even ‘the State is not claiming that any of the independent organizations expressly advocated’ for the election of Mr. Walker or his opponent, he added. Instead they did ‘issue advocacy,’ which focuses on specific political issues.”
The implication of this secret ruling, if it is upheld, is that a candidate for Wisconsin office can now operate hand-in-glove with a nonprofit like Wisconsin Club for Growth — which can accept unlimited donations and is under no obligation to disclose those donations — as long as Wisconsin Club for Growth’s ads omit words like “vote for” or “vote against.” This would have the effect of undermining the state campaign finance laws that limit how much an individual can donate to a candidate and require disclosure, election law experts say.
“In that situation, the contribution limits become meaningless,” says Paul S. Ryan, Senior Counsel with the Campaign Legal Center.