Tuesday, June 15, 2010

Curb Your Enthusiasm

I've met Mike Tate and I have to confess that I like the guy. He's bright and funny and not quite the zealot that he (and most other politicos) seem to be. I have the same impression of Scot Ross.

I appreciate that the boys and girls that do this kind of work (on my side as well) aren't playing beanbag. As a consultant on my side told me, we can't play nice when the other guys play nasty. I couldn't argue with her, it is a classic game of hawks and doves. To paraphrase Justice Scalia, if one side fights freestyle, the other cannot adhere to the Marquis of Queensbury Rules.

But the attacks on Mark Block as a "convicted criminal" or "criminal fundraiser" are another matter and may themselves have legal consequences.

The statements are false. Block was never convicted of a crime. He was never charged with a crime. The matter in which he and the Wilcox campaign (and, incidentally, blogger James Wigderson in an earlier life) were respondents was a civil action. It was not adjudicated on the merits but settled. The settlement did not amount to a finding of wrongdoing on the part of Block who expressly denied any wrongdoing. He was not fined but agreed, as part of the settlement, to a civil forfeiture. (The complaint as to Brother Widgerson was dismissed.)

As a complaint filed by my friend Mike Dean on behalf of James Zeiler points out, Russ Feingold's campaign agreed to a similar resolution (and paid $ 9000 in forfeitures) in response to allegations of legal violations in his 1998 re-election campaign.

Russ Feingold is, of course, not a convicted criminal or criminal fundraiser. Neither is Mark Block.

The irony is that the statement about Block may itself be a crime. Wis. Stat. sec. 12.05 makes it unlawful for any person to "knowingly make or publish, or cause to be made or published, a false representation pertaining to a candidate or referendum which is intended or tends to affect voting at an election." Violations may result in a fine of not more than $1000, imprisonment of not more than six months or both.

There is, I think, a question on the constitutionality of the statute with cases considering similar statutes in other states going both ways. To be clear, moreover, the Zeiler petition to the Government Accountability Board is not a criminal complaint, but itself seeks only civil remedies. Criminal charges would have to be brought by a prosecutor.

Now I don't think that Mike Tate should be criminally charged. Nor would I encourage Mark Block to sue him for defamation. He would have to show that Tate acted with knowledge of the falsity of his statement or in reckless disregard of its truth or falsity. A defense might be - literally - that Tate (who is not a lawyer) was not venal; he was clueless.

I do not expect Mike Tate or other political consultants to discover the value of civility. This is a war in which the deterrent effect of mutually assured destruction has largely broken down.

But I do think Mike should be careful. This was several bridges too far.

Cross posted at Marquette University Law School Faculty Blog


John Foust said...

Wow, what a lawyer! Clintonesque! It's a good thing Tate didn't say something like "Mark Block found a loophole."

How about "Mark Block agreed to pay $15,000 out of the goodness of his heart. He wanted to contribute the money to the orphans who beg for crusts outside the RPW HQ, but the State Elections Board wouldn't let him!"

Here's a different take on the Wilcox/Block/Wigderson violations, one that doesn't use the flowery language to make the client look innocent of any wrongdoing, or as you put it, mutually assured destruction, at least as much as $200,000 can buy.

Summarizes that account, "Weiss was not personally fined by the State Elections Board, but the stink of the Wisconsin Coalition for Voter Participation activity sticks with him. Documents disclose only four people, including Weiss, active in the Coalition organization. And their single activity as a group resulted in one of the largest fines for political corruption in Wisconsin at the time."

Standard Contradictory Disclaimer™: The irony is that the statement about Block may itself be a crime. [...] Now I don't think that Mike Tate should be criminally charged. (But I'll blog about it, and quote the statute and the penalty, just to look menacing. And to think they aren't even paying me to do this! I'll do it for the occasional lunch!)

Anonymous said...

As far as I have been able to find out, Mike Tate didn't call Mark Block a "convicted criminal." The challenged statements, one of them by Tate, refer to a "criminal fundraiser" and a guy with a "criminal history of fundraising." Is it false to say that, even before his recent brush with the law in Nevada, O.J. Simpson was a criminal -- had a criminal history of murdering his wife? Block conceded that the State may be able to prove facts that constituted a crime. If Block in fact committed a crime, is it false to say he's a criminal? An individual can be truthfully labelled a "criminal" just as O.J. can be truthfully labelled a "murderer" whether or not they've been held to account for offenses against society in criminal court. And if Block feels he's been defamed, he can sue, and the defense would be that he had, in fact, committed a crime.

Don't look for that lawsuit to be filed any time soon.

John Foust said...

Sorry, Anony, those words are out there. From the DPW web site press release, it says "Duffy is sponsored by the convicted criminal fundraiser and Tea Party Toady Mark Block, who yesterday even GOP spokesman and right-wing radio talk show host Charlie Sykes called a "two-bit political operative" " and "Now, following the path of the criminal Mark Block, Duffy is using some two-bit math himself" and in a linked DPW press release, it says "Duffy is no stranger to bagging money in Milwaukee. Last year he went there under the watchful eye of disgraced criminal fundraiser Mark Block, who threw his own fundraising bash for the reality television contestant last year. Block is the criminal "Tea Party" leader who was fined $15,000 for a scheme in which he funneled money from rich, out-of-state donors to a Wisconsin Supreme Court campaign. Block was banned from involvement in campaign work because of his criminal enterprises, but surfaced to work for Duffy. [para] "In some smoke-filled room, the Republican czars have decided to ignore the democratic voice of their members on behalf of a candidate entirely out-of-touch with the working people of northern Wisconsin," Democratic Party of Wisconsin Chair Mike Tate said Thursday. "Shouldn't northern Wisconsin voters be in charge of picking their own Congressman, not criminal fundraisers or fat cats in Milwaukee?"

In other words, Prof. H.R. Shh 'n Shh is defending an MTV reality star who succeeded Gableman as Ashland County's DA, who now wants to be congressman of the seventh district.

Standard Contradictory Disclaimer™: I appreciate that the boys and girls that do this kind of work (on my side as well) aren't playing beanbag. (Not that I'm doing this kind of work! I'm civil! But these attacks are another matter and may themselves have legal consequences. Have I forgotten to mention this week that Gableman's ads should be free to say whatever they want and paid for by anyone, even if they are false or misleading?)

P.S. My flowery link above seems to have been broken. Richter's March 31 2007 blog on Wilcox can be viewed in the Google cache until CMI manages to restore her disappeared posts.

John Foust said...

Even Dem operative Xoff says Block isn't a convicted crook, and his 2006 blog post tells more details and links to the people involved.

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