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Is John Doe 2 Dead or Alive?

Investigation moves ahead, but campaign finance laws may be weakened

Feb. 5, 2014
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Although three appeals court judges breathed new life into the John Doe 2 investigation into potential crimes committed by Gov. Scott Walker’s campaign and conservative political groups, a January ruling that quashed subpoenas could stymie the investigation—and it has the potential to weaken campaign finance laws in favor of allegedly independent groups that aren’t required to disclose their big donors.

Last week’s ruling dismissed the objections raised by three anonymous parties about the structure and operation of John Doe 2, which spans five counties around Wisconsin.

More serious, however, was the mid-January ruling by Judge Gregory Peterson, who’s overseeing the investigation, which had begun in Milwaukee County in August 2012, new documents reveal.

Peterson’s ruling hasn’t been released to the public.

We only know about it because an unsigned op-ed in the Wall Street Journal reported snippets of it.

The excerpts state that Peterson quashed subpoenas sent to Walker’s campaign and the conservative groups Wisconsin Club for Growth and Citizens for a Strong America because prosecutors didn’t show that the groups had “expressly advocated” for and coordinated with Walker’s campaign.

Wisconsin’s campaign finance laws prohibit candidates and the independent outside groups from coordinating efforts, such as fundraising, messaging, spending or strategy. Nor can independent issue ads expressly advocate for or oppose a certain candidate with ads that contain the magic words “vote for” or “vote against” that candidate.


The Secret Ruling

Brendan Fischer, general counsel for the Madison-based watchdog group Center for Media and Democracy, said he’s troubled by the potential for Peterson’s ruling to erode the firewall between campaigns and outside groups.

“This decision, if what the Wall Street Journal is reporting is accurate, is that you don’t have to worry about coordination or you can coordinate as much as you want if you are running issue ads,” Fischer told the Shepherd. “The only distinction being if you don’t use those magic words in your ads, then you can coordinate as much as you want.”

Fischer warned that Peterson’s secret ruling, if the Journal’s op-ed is to be believed, could allow candidates to knowingly coordinate and rely on independent groups that are not subject to campaign contribution limits or donor disclosure rules.

“If there’s really no distinction between this supposedly independent group and a candidate, then it’s very likely there’s going to be a corrupting influence,” Fischer said.

According to data collected by the Wisconsin Democracy Campaign, the Wisconsin Club for Growth spent more than $9.1 million on the 2011 and 2012 recall elections. Its advisor, R.J. Johnson, is a longtime political advisor to Walker. The Wisconsin Club for Growth donated more than $4 million to Citizens for a Strong America. Very little is known about the sources of these funds, although some national Koch brothers-connected groups appear to be funders.

Fischer said Peterson’s secret ruling should be released to the public so that voters can know whether it has altered the meaning of the state’s campaign finance laws or if the Wall Street Journal’s unsigned op-ed is accurate. The John Doe 2 prosecutors may appeal Peterson’s ruling, but those documents will likely be subject to the investigation’s secrecy ruling as well.

Fischer said Peterson’s ruling doesn’t have the precedent-setting impact of an appellate court or Supreme Court ruling, but it appears to green-light a new meaning of coordination.

“If [Peterson] actually did establish this rule, that’s creating new law,” Fischer said. “If it’s such a significant change in public policy, you don’t really want that to be happening out of a secret court, away from the public eye and doing it through a secret order.”


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