I have read Judge Niess' decision denying Mark Green's motion for an injunction blocking enforcement of the State Election Board's decision requiring him to divest certain money that had been converted from his federal to his state account.
To begin with, I do not discount what the judge had to say because he is a Doyle appointee. Judges, in general, struggle to get beyond that and his opinion should be judged by the strength of his legal reasoning and not by the provenance of his place on the bench. There is no reason to think that Judge Niess did anything other than try to call it as he sees it.
Having said that the conclusion he reaches is far from obvious.
It is painful to read the mischaracterization of it in the blogoshere. Xoff, for example, says the judge ruled that the conversion was illegal. Close, but not quite. He ruled that Green had not demonstrated a reasonable likelihood of success which was the only issue before him on a motion for preliminary relief. The merits of Green's claim are, strictly speaking, still before him.
But Bill's misstatement is not so bad given that I think it's likely that the judge will ultimately rule that the SEB was right. This is so because he bought into the argument that, even thought this may have been a change in state law - in other words, Green was not permitted to do something that (four years earlier) Tom Barrett (over Xoff's objection) had been allowed to do - the reason is because of a subsequent change in federal law.
The lefty blogosphere acts as if this change was obvious. It's not. In fact, I think it may be a fairly weak argument. The claim is that a 2004 amendment in the BCRA (the Orwellian-named "Bipartisan Campaign Reform Act"), listing permitted uses for federal campaign contributions, prohibited the type of conversions that Wisconsin had always permitted. This is so, the Court reasoned, because the amended BCRA permits donations to state and local candidates only in conformity with state law.
There are two problems with this. One is that when we speak of "what is permitted by state law" might that not include the fact that the SEB in Wisconsin had, in the few cases which it came up, permitted conversion of federal contributions to state accounts? How can we carve out only some state law (those on regulation of PACs making in-contributions)and not the law permitting conversions?
The second is that a conversion is not obviously the same as a donation to a state and local candidate. The latter seems just as likely to refer to money given to someone else than money that one already possesses converted to a different use. We normally don't think of money that we give to ourselves as "donations."
The circuit court's decision amounts to a holding that Congress placed a new limit on federal to state conversions without expressly saying so. That can happen, but I think it would be a disfavored interpretation.
The court (in fairness, this was a preliminary decision) did not say much to justify that conclusion. Only about 3 pages of it's 15 page decision are devoted to the merits and my first objection is unaddressed while my second is relegated to a footnote. The footnote says that, if Congress wished to exclude donations to oneself, it could have said so. True. But one could just as easily say that, if Congress wanted to federalize the application of limitations on contributions to state candidates to conversions, it would have said so. That's a pretty big thing to do by implication.
Even if the circuit court was right, it is not obviously right (all questions do not have obvious answers) and to say, as Doyle's campaign blog still does, that this means that Green "chooses with laws to obey" in an "outrageous" manner is more than I could ever do.
And I'm a shark. As we used to say, in the day, grok that.