Last week, the 7th Circuit Court of Appeals issued a major blow to Gov. Scott Walker and his political allies.
The Chicago-based federal appellate panel unanimously rejected a stunning decision issued by federal Judge Rudolph Randa in May shutting down the state investigation into coordination between the Walker campaign and dark money groups such as the Wisconsin Club for Growth, which accept secret, unlimited donations.
The three judges struck down Randa’s remarkable declaration that Republican and Democratic prosecutors were conducting a baseless and politically motivated investigation against Republicans. The panel rejected Randa’s claim that circumventing campaign finance laws should be celebrated as a means of “promoting political speech.”
“Until the district court’s opinion in this case, neither a state nor a federal court had held that Wisconsin’s (or any other state’s) regulation of coordinated fundraising and issue advocacy violates the First Amendment,” the panel wrote. Randa “waded into a vexed field of constitutional law needlessly.”
The 7th Circuit’s rebuke of Randa stung even harder because it was authored by Judge Frank Easterbrook, a Ronald Reagan appointee and prominent conservative jurist. Easterbrook was joined in his ruling by Judge William Bauer, appointed by President Ford, and Chief Judge Diane Wood, appointed by President Clinton.
Judge Easterbrook, writing for the three-judge panel, held that Randa’s May 6 ruling halting the investigation was “imprudent,” “unnecessary” and “an abuse of discretion.” He ordered Randa to throw out the federal lawsuit filed by Wisconsin Club for Growth and its director, Eric O’Keefe, declaring that the judge never should have taken the case in the first place.
Randa, given a lifetime appointment to the bench by George Bush in 1992, acted improperly when he interfered with an ongoing state criminal investigation, being conducted under state law, and overseen by state courts, Easterbrook wrote.
“State courts are free to conduct their own litigation, without ongoing supervision by federal judges, let alone threats by federal judges to hold state judges in contempt,” Easterbrook wrote.
Months earlier, the 7th Circuit threw out Randa’s astounding order that prosecutors destroy all evidence gathered in the investigation. Such an edict is an extreme measure in a criminal case. Yet it was even more extraordinary in the context of a preliminary injunction—an intermediate measure that is only supposed to halt the investigation while the court case proceeds.
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Should Randa Have Been on the Case?
Some judicial ethics experts have said that Randa should not have been involved with the case at all.
Randa has regularly attended all-expenses-paid “judicial junkets” funded by, among others, the Charles G. Koch Charitable Foundation and the Lynde and Harry Bradley Foundation—financial interests directly tied to the groups under investigation.
The Koch network has funded Wisconsin Club for Growth, which filed the case before Judge Randa, and also funded other groups under investigation in the probe. The Bradley Foundation’s President and CEO, Michael Grebe, chaired Scott Walker’s 2010 and 2012 gubernatorial campaigns—and Walker’s 2012 campaign, of course, is under investigation in the John Doe.
Judge Randa “never should have allowed himself to be involved in that case,” Monroe Freedman, a Hofstra Law School professor and judicial ethics expert, told The Capital Times of Madison.
Last year, Randa also came under fire for refusing to recuse himself in another high-profile case.
In July 2013, Randa issued a controversial ruling barring sex abuse victims from accessing $60 million that the Milwaukee Archdiocese had quickly transferred into a fund for maintaining Catholic cemeteries, holding that doing so would violate the church’s free exercise of religion under the First Amendment and a 1993 federal law designed to protect religious liberty.
Yet Randa never disclosed that nine of his close relatives (including both parents) were buried in the same cemeteries that would benefit from the fund, and refused to recuse when attorneys for the sex abuse victims raised the potential conflict of interest.
When the 7th Circuit heard the appeal, one judge said Randa’s decision not to recuse himself was “troubling.” The 7th Circuit has not yet issued a decision on the Archdiocese case.
“Beyond Thin” Evidence in Doyle Aide’s Conviction
Randa appears to have developed a reputation in the 7th Circuit for ideologically motivated decisions.
In 2006, the same 7th Circuit panel that reviewed Randa’s John Doe ruling quickly reversed his decision in another politically charged Wisconsin case.
Randa oversaw the conviction of state purchasing supervisor Georgia Thompson, who a Republican U.S. attorney alleged to have steered state travel contracts toward a firm linked with Wisconsin’s then-Gov. Jim Doyle, a Democrat.
The prosecution was campaign fodder for Republicans. They spent $4 million on ads during the 2006 gubernatorial elections tying Thompson’s alleged “corruption” to Doyle, who was narrowly reelected. Thompson was convicted in Randa’s court shortly before Election Day, and Randa took the surprising step of demanding that Thompson be jailed while her appeal was pending.
When the 7th Circuit heard Thompson’s appeal four months later, the judges quickly saw through the flimsy evidence used to convict her. The panel immediately ordered Thompson’s release, just hours after oral argument—an extraordinary measure, with such decisions usually taking weeks or months.
Judge Diane Wood called the evidence used to convict Thompson “beyond thin.” She told the U.S. attorney who prosecuted Thompson, “I’m not sure what your actual theory in this case is.”
That U.S. attorney, Steven Biskupic, is now Walker’s campaign lawyer. Biskupic’s wife is Randa’s judicial assistant. Walker recently appointed Biskupic’s brother, Vince, to a judgeship in Outagamie County, despite his having a long history of ethical questions.
Anti-Latino Bigotry on Display
The Thompson ordeal wasn’t the only time that the 7th Circuit chided Randa.
In 2010, a 7th Circuit panel reversed Randa’s sentencing of Jose Figueroa, a man born in Mexico who had been accused of dealing drugs in Milwaukee.
During the sentencing hearing, Figueroa’s attorney asked Judge Randa for leniency, noting that he was “from a very humble background” in Mexico, one of 12 children whose father died at a young age.
Figueroa’s wife addressed the court, telling Judge Randa that her husband is “a good husband, a good father and a good son,” adding: “I would hope that you would be able to think of his children, and know that he is not alone. And that the sentence is not being passed just on him. It’s being passed against us as well. Jose is…an affectionate man, an attentive man, a polite and educated man.”
Figueroa asked Judge Randa “that you please value my family” in sentencing. “It’s so difficult to know that these children are suffering,” he said.
Randa’s response?
“Even Adolf Hitler was admired by his family. Adolf Hitler loved his dog. Yet he killed 6 million Jews.”
The judge went on a long and unrelated tirade about how “the Southwest is being overwhelmed,” and lashed out at immigrants—including Mr. and Ms. Figueroa—declaring “you people aren’t supposed to be here” and that “you know that it’s illegal for you to come into this country…. So you start out by violating the laws of this country by coming into this country.”
According to the 7th Circuit decision, Randa “linked the drug trade to Mexico, then to Colombia and Venezuela, and then to Iranian terrorists through the person of Venezuelan President Hugo Chavez.”
Randa’s litany of “extraneous and inflammatory comments during the sentencing hearing,” the 7th Circuit wrote, “cast doubt on the validity of the sentence.”
“We conclude that the district court’s process was so far out of bounds that Figueroa is entitled to resentencing.”
“Seriously Flawed”
In 1994, a group of anti-choice protesters was arrested for blocking access to a women’s health clinic in Milwaukee—even welding themselves into the car used to obstruct the door. They were charged with violating the Freedom of Access to Clinic Entrances Act, a federal law aimed at protecting access to clinics following a wave of violence against abortion providers and intimidation tactics against women seeking health care.
Judge Randa declared the law unconstitutional. Although seven other federal judges and the 4th Circuit Court of Appeals had upheld the law, Randa invoked a narrow, old-school interpretation of the Commerce Clause to declare that Congress lacked the authority to regulate protests outside of clinics that provide abortions.
If Congress can regulate intimidation tactics by anti-choice activists, Randa posited, what’s next: regulation of breast-feeding, dieting and video rentals?
The 7th Circuit called Randa’s reasoning “seriously flawed,” and rejected his assertion that Congress did not have the authority to enact the law.
“In substituting its judgment for that of Congress, the district court went beyond its own authority as defined by the Supreme Court,” the 7th Circuit wrote.
Blessing Legal Money Laundering
Although the 7th Circuit shut down Randa’s far-out decision on the John Doe—and with it, his declaration that the First Amendment protects candidates coordinating with dark money groups that take unlimited donations—the controversial judge recently had another opportunity to chip away at limits on money in politics.
Just a few weeks ago, Randa sided with a challenge to a Wisconsin law capping the aggregate amount that candidates can accept from political action committees (PACs). Judge Randa said the outcome was inevitable given the U.S. Supreme Court’s ruling earlier this year in McCutcheon v. FEC—even though McCutcheon dealt with the aggregate amount that contributors could give to multiple candidates, whereas the Wisconsin law governed the total amount that a single candidate could accept.
Randa ignored earlier declarations from the Wisconsin Supreme Court that the aggregate PAC limits were justified as a means of preventing circumvention of campaign finance limits.
And, Randa went even further than those challenging the law had requested—so that now candidates can accept unlimited donations from political parties, legislative campaigns and political action committees, which in turn, can accept unlimited donations from wealthy donors.
This gives the wealthy few a new way to sidestep contribution laws. Even though donors can’t earmark funds for a particular candidate, they now can make unlimited contributions to the Democratic or Republican parties, which can then funnel the money directly to the candidates at the top of the ticket or facing hotly contested races.
“Whether Randa intends to or not, what he is doing is blessing legal money laundering,” says Mike McCabe, executive director of the Wisconsin Democracy Campaign.
Withdrew Plans for Retirement After Obama Elected
Judge Randa almost retired six years ago.
But the 2008 elections kept him on the bench.
Judge Randa, who was appointed by George H.W. Bush in 1992, announced in June 2007 that he would be taking “senior status,” a form of semi-retirement where judges take a smaller caseload.
President George W. Bush selected Randa’s replacement, but he was not confirmed before Bush left office.
Judge Randa withdrew his retirement plans in 2009, shortly after Barack Obama was elected president.
So why is this judge allowed to rule on cases that are connected to his personal and partisan allies?
Lifetime appointments allow judges to make courageous and tough decisions on the bench. But at the same time, lifetime appointments also make it difficult to get rid of judges who issue highly partisan and questionable decisions riddled with conflicts of interest.
Brendan Fischer is general counsel with the Center for Media and Democracy, publishers of PRwatch.org, ALECexposed.org and SourceWatch.org.
