Yes, the John Doe is on life support

Three weeks ago, I had a column in the Crossroads section of the Milwaukee Journal Sentinel, calling the John Doe investigation all but dead. An article in the paper, quoting me and a number of other legal experts, suggested the same thing.

Last week, Brendan Fischer of the Center for Media and Democracy wrote that it may not be. He says that, in a recent case seeking to end the investigation, the Seventh Circuit rejected claims that the Doe relied on an unconstitutional interpretation of campaign finance law

No, it didn't. Fischer's statement is wrong. The point is not even arguable.

In O'Keefe v. Chisolm, the court did not reject those claims; it declined to consider them. It held that the federal Anti-Injunction Act prohibited an injunction against the John Doe procedure. This was a procedural ruling that did not itself reach the merits of the Doe.* The closest that the court came to the merits was in dismissing personal claims against the prosecutors. Those claims could prevail only if it was "clearly established" at the time of the investigation that the theory upon which it was based was unconstitutional. The Seventh Circuit said that it might turn out to be constitutional to ban coordinated issue advocacy. But to say that an issue is unresolved is not to resolve it.

These are pretty elementary mistakes on Fischer's part. First year law students learn the difference between decisions on jurisdiction and decisions that reach the merits of the claim. They are taught the distinction between concluding that a claim is, as lawyers say, "colorable" and concluding that it is correct.

In any event, my argument is not that the Doe fails because banning coordinated issue advocacy is unconstitutional, although it may be. But even it's not, it remains the case  that 1) Wisconsin has not adopted a constitutionally adequate definition of coordination, 2) Wisconsin has not clearly made whatever ban on coordination it has applicable to issue advocacy and 3) based on press reports, the activity that is being investigated is not coordination.

Indeed, a principal part of the Seventh Circuit's reasoning in O'Keefe was that a federal law suit was unnecessary because the Club could - and did - raise these objections in state court. Not only had it done so, it won before the judge overseeing the Doe.

Indeed, the weakness of the Doe is illustrated by the supposed "smoking gun" e-mails that Fisher cites. None of them are evidence of coordination. At most, they suggest - they don't establish -  that Governor  Walker may have raised money for advocacy organizations. 

Fischer calls these activities "entirely unprecedented" in Wisconsin. Really? When Barack Obama came to town last fall, he appeared at a $16,000/plate sushi dinner. Where does Mr. Fischer think the money went? (In fact, the Presidents' frenetic fundraising for SuperPACs became something of a joke during the last election cycle. It wasn't a crime.)

Politicians often urge people to give money to political action committees and other organizations who will spend money that might benefit the politician making the request or those that she favors. If raising money constitutes coordination, that would, on the prosecutors' theory of the Doe, make these committees or organizations subcommittees of the requesting politician. Because the donations would almost certainly exceed the contribution limits (and wouldn't be reported as contributions to the requestor), crimes could be charged. That's not the law and, if it was, it would be unconstitutional.

I don't say that the John Doe is dead because there is a slim chance that it could be resurrected. But it doesn't look good. It never did.

*The plaintiffs in O'Keefe are seeking review in the Supreme Court. The Seventh Circuit's ruling that the Anti-Injunction Act can be applied to an action brought under section 1983, a federal civil rights law, seems inconsistent with the approach adopted by the Supreme Court and followed by every other Circuit Court of Appeals to have considered the issue. I and my colleagues at the Wisconsin Institute for Law & Liberty filed an amicus brief in support of their petition.

Cross posted at Purple Wisconsin