If We Follow John Doe

John Doe is the name given to unknown or anonymous targets of a criminal investigation or similarly unidentified defendants or plaintiffs in legal proceedings. Wisconsin has come to know John Doe well. A little more than a decade ago, "John Doe" was actually five of the state's most powerful legislators as well as several of their aides. Criminal charges for misconduct in public office were filed against all of them, and ultimately political careers were ended in what has come to be known as Wisconsin's "caucus scandal."

More recently, John Doe turned out to be six close associates of Governor Scott Walker who were convicted of a variety of crimes. What was unearthed during that investigation prompted another, and in this new drama John Doe is Walker himself, along with key political allies of the governor like R.J. Johnson, Deb Jordahl and Eric O'Keefe, and groups like O'Keefe's Wisconsin Club for Growth.

While the fascination with who John Doe is and what he has been up to is entirely understandable, more attention should be paid to where Mr. Doe is trying to lead us.

Previously sealed documents made public this week by court order show that prosecutors accuse Walker of overseeing a "criminal scheme" to illegally coordinate election campaign activities with supposedly independent groups. Longstanding Wisconsin law requires groups wishing to intervene in elections by making "independent disbursements" to swear an oath that they do not "act in cooperation or consultation with any candidate or agent or authorized committee of a candidate...."

It has been settled law in Wisconsin that this prohibition on coordination between candidates and interest groups applies to organizations doing election-related "issue advocacy." Application of the coordination ban to so-called "issue ad" groups was challenged in the late 1990s in the case involving a group that was found to be coordinating with Justice Jon Wilcox’s 1997 campaign for reelection to the state Supreme Court.

State election authorities heavily fined both Wilcox’s campaign as well as political operative Mark Block, who ran the issue ad-sponsoring Wisconsin Coalition for Voter Participation. At the time, the fines were the largest in state history for campaign finance violations. Block also was banned from involvement in Wisconsin elections for three years. The state's enforcement actions were contested in court, and ultimately were upheld in a 1999 ruling.

John Doe's aim in this current matter is to unsettle that settled law. Federal judge Rudolph Randa recently obliged, putting the investigation on hold for the time being. Judge Randa threw that settled law out the window. He bought Doe's contention that coordination should be allowed, ruling that the ban on coordination applies only to groups engaged in "express advocacy" — messages that explicitly urge people to vote for or against a candidate — not "issue advocacy" that promotes or opposes candidates without coming right out and saying how people should vote.

Randa does not have the final say on this. But if his ruling stands up on appeal and such coordination becomes legal, we will enter a new world of shadow campaigns where all of the money will be dark money. Candidates will be able to orchestrate campaigns carried out by surrogates who do not have to abide by campaign contribution limits or disclosure requirements. Voters will be kept totally in the dark about who is paying to put candidates in office. Elected officials will be spared the discomfort of journalists and others connecting the dots between who gives them political donations and who benefits from their policy decisions. There will be no more visible conflicts of interest. Public ignorance will be the politicians' bliss.

John Doe does not want a settlement in this case. He wants a test case, one that goes all the way to the Supreme Court. Five of the nine justices have shown ample disrespect for precedents and a willingness to write new law from the bench in other recent campaign finance cases. In Citizens United the court overturned more than a century of settled law to allow unlimited spending on elections by corporations and other interest groups. In McCutcheon the five-member majority invalidated the decades-old federal aggregate limit on campaign contributions to candidates. John Doe is counting on more such judicial activism to sweep away the prohibition on coordination.

If John Doe gets what he wants, the result will be shadow campaigns overseen by candidates but carried out by anonymous proxies. Unlimited donations. No disclosure. An electoral black hole preventing any light from escaping and causing anything remotely resembling democracy to implode.