Illegal coordination not 'politics as usual,' observers say

2014-06-21T06:45:00Z Illegal coordination not 'politics as usual,' observers say Chippewa Herald
June 21, 2014 6:45 am

Prosecutors’ allegations that Gov. Scott Walker’s campaign secretly coordinated its efforts with so-called “issue ad” groups revealed to an unprecedented degree how much candidates might attempt to rely on unaccountable third-party groups to help get them elected.

The allegations laid out by John Doe special prosecutor Francis Schmitz — that Walker was involved in an alleged “criminal scheme” of illegal campaign coordination — were revealed for the first time Thursday. The first-term Republican governor on Friday defended his actions as within the law.

But experts on campaign finance suggested the degree of coordination described by Schmitz was greater than most observers would have perceived.

“I don’t think it’s fair to characterize this as ‘politics as usual.’ This is something extraordinary, if the allegations are true,” said Daniel Tokaji, a law professor at Ohio State University. “Cooperation is common. Illegal coordination is pretty rare. And it’s hard to prove.”

Tokaji said that campaigns and groups signaling their actions through press releases, for example, about activities like fundraisers or television advertising buys, is cooperation. But if the allegations are true, he added, agreements to coordinate fundraising, spending and messaging would go beyond simple cooperation.

Tokaji, the author of a newly released book, “The New Soft Money,” about outside groups and how their spending has influenced elections, said coordination is especially “worrisome.”

“Coordination is worrisome because it increases the risk of political corruption, and the exchange of money for political favors,” Tokaji said.

But Rick Esenberg, president and general counsel of the conservative Wisconsin Institute for Law & Liberty, raised questions about whether the activities prosecutors allege to have occurred would constitute coordination. And he said the state’s campaign finance law is not “as simple as it might appear,” adding that trying to regulate issue advocacy might raise First Amendment issues and be constitutionally problematic.

The case against Walker that was laid out in the secret John Doe investigation was filed in court as part of a federal lawsuit seeking to halt the probe. The document was made public Thursday.

A federal judge’s ruling halting the investigation is under appeal, and no charges have been filed.

But election watchdogs warn that, if the courts ultimately decide that no campaign laws were broken, the case will open the door to unlimited — and untraceable — campaign contributions.

“We will have campaigns run by surrogates, orchestrated by campaigns,” said Mike McCabe, executive director of the Wisconsin Democracy Campaign. “The public will be kept completely in the dark. We would basically have a system of shadow campaigns.”

But some conservatives say Walker is being unfairly targeted and accuse prosecutors of turning a blind eye to illegal coordination they argue must be occurring among liberal groups. A lawyer for Schmitz on Friday defended the integrity of the special prosecutor, saying he makes decisions “based on the facts and the law.”

McCabe said that if campaign coordination is widespread more investigations should be opened.

“If coordination is commonplace, then the ongoing one shouldn’t be stopped,” he said. “There should be more started.”

McCabe noted stiff punishments in Wisconsin when a political advocacy group was found to be coordinating with Justice Jon Wilcox’s 1997 campaign for re-election to the state Supreme Court.

Wilcox acknowledged in 2001 that his campaign staff had illegally worked with the Wisconsin Coalition for Voter Participation to send out $200,000 worth of postcards disparaging his opponent without disclosing the activity.

Wilcox’s campaign agreed to pay a $60,000 fine, and Wilcox contributed $10,000 toward the settlement.

Jay Heck, the executive director of Common Cause Wisconsin, added that the ruling from U.S. District Judge Rudolph Randa halting the probe could undermine Wisconsin’s campaign finance laws about coordination and spending.

“It’s not politics as usual. It’s very rare, and it’s very unusual,” Heck said. “This has gone further than anything we’ve seen before. We’re really in a new world.”

Paul S. Ryan, senior counsel for the Campaign Legal Center, said that Randa’s ruling in the John Doe case “flies in the face of campaign finance law around the country.”

“His view of law is completely out of step with the U.S. Supreme Court and courts around the nation,” Ryan said.

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