All Doe all the time, part one

My op-ed in Sunday's Crossroads on the current sorry state of the permanent John Doe investigation into one side of our political divide can be found here. I elaborated on the rumors of settlement negotiations here. More on that later.

A few responses to points made in the comments to the op-ed.

First, I am taking no position on whether anyone has or has not acted unethically. Not everything can be reduced to a morality play. I am saying that the decision to pursue this reflected an insufficient regard for First Amendment values and poor judgment about what can and cannot be accomplished in this way. Whether it was accompanied by unethical behavior or was partisan is something I'll leave to others.

Second, I am not overly impressed that the investigation was purportedly blessed by the GAB. To get approval of a superintending agency of retired and (very) part time judges does not overcome the glaring problems with the investigation. An appeal to authority can't trump what is right before our eyes. (The same thing applies to the formal cooperation of other DAs.)

In any event, it may be that the Doe was not initiated but joined by the GAB and at least in a departure from - if not in violation of - its statutorily mandated procedures.

By way of counterpoint (an appropriate thing to do), the Journal Sentinel ran a column by Bill Lueders which had originally appeared online. He begins by referring to Sen. Mike Ellis' recent lubricated soliloquy - caught on tape by an investigative journalist - to create an outside group to attack his opponent.

Lueders suggests that everyone assumed that Ellis' plan - which he never carried out - would be illegal. He argues that Judge Randa's decision shutting down the John Doe because the state cannot constitutionally restrict issue advocacy changes that - that it "alters the campaign landscape" in some fundamental way.

I do think the decision is an important doctrinal clarification, but it may not mean that what Ellis talked about would be legal.

What Randa said is that the state may only restrict express advocacy. As defined by the United States Supreme Court, this is speech that is susceptible of no interpretation other than as a call to elect or defeat a candidate.

It is unclear whether Ellis' cocktail hour disquisition referred to express advocacy. Issue advocacy can be - and usually is - critical of a candidate but does so only in the context of taking a position on some issue. While some people think of this as a distinction without a difference, robust protection of freedom of speech requires that people - and organizations of people - have the right to speak freely about issues at election time - even if that means highlighting the position of elected officials and candidates.

The rest of the horribles paraded by Lueders are just wrong. For example, the claim of Paul S. Ryan of the Campaign Legal Center that outside groups could pay for a candidate's campaign staff, rent and food bills is ridiculous. Randa's decision does not say that express advocacy is the only form of in-kind campaign contribution that can be made by an outside group. It says that issue advocacy is - unlike paying rent or salaries - constitutionally protected and cannot become less protected because of some degree of coordination with a candidate.

Cross posted at Purple Wisconsin.