SCOTUS ruling on campaign finance shows abuse of John Doe, targets say

Part 39 of 39 in the series Wisconsin’s Secret War

By M.D. Kittle | Wisconsin Reporter

MADISON, Wis. – Conservative targets of a secret probe say the U.S. Supreme Court’s ruling Wednesday striking down limits on federal campaign contributions is further proof that Wisconsin’s politically motivated John Doe investigation has stepped well outside the lines of the law, according to a notice of supplemental authority filed late Wednesday in federal court.

The high court’s 5-4 decision in McCutcheon v. the Federal Election Commission “further confirms” that John Doe prosecutors’ “interpretation of Wisconsin campaign-finance law violates the First Amendment, could not possibly result in a valid conviction, and serves only as a pretext to support their campaign of harassment.”

DOE BLOW? The U.S. Supreme Court’s ruling Wednesday striking down campaign finance limits underscores the fact that prosecutors in a secret John Doe probe violated the First Amendment rights of conservative targets, according to a motion filed hours after the ruling.

David Rivkin Jr., attorney for conservative activist Eric O’Keefe and his Wisconsin Club for Growth, asserts the prosecutors’ theory of illegal coordination on the part of conservative groups is “incompatible with the First Amendment,” and that the theory is a “pretext adopted without any regard for well-established First Amendment principles.”

O’Keefe and the Club have filed a lawsuit in the U.S. District Court for the Eastern District of Wisconsin in Milwaukee, alleging John Doe prosecutors in the probe have violated the conservative targets’ civil rights. The suit asks the court to immediately shut down the investigation, launched in August 2012 by the Office of Milwaukee County District Attorney John Chisholm, a Democrat.

O’Keefe is suing Chisholm, two Milwaukee County assistant DAs, the special prosecutor in the probe and a shadowy Government Accountability Board-contracted investigator.

Notices of supplemental authority may be filed with the court before the court decides a case to call attention to court rulings or other material evidence that are significant to the issues raised.

The Supreme Court’s ruling Wednesday overturned limits on the total amount of donations an individual could spend on political candidates.

Individuals still are prohibited from contributing more than $2,600 to a specific candidate, but the ruling removes aggregate caps on contributions to multiple candidates and causes.

Current total spending limits have been capped at $48,600 for individual contributions to candidates during a two-year election cycle, plus $74,600 on cash sent to political parties and political action committees.

“An aggregate limit on how many candidates and committees an individual may support through contributions is not a modest restaint at all,” wrote Chief Justice John Roberts Jr in the ruling. “The government may no more restrict how many candidates or causes a donor may support than it may tell a newspaper how many candidates it may endorse.”

The total limits create a substantial imposition on First Amendment associational rights, without doing anything to combat quid pro quo corruption, or political favors in exchange for campaign contributions, according to the ruling.

“If there is no corruption concern in giving nine candidates up to $5,200 each, it is difficult to understand how a tenth candidate can be regarded as corruptible if given $1,801, and all others corruptible if given a dime,” Roberts reasoned.

“Yet that is precisely the broken logic underlying Defendants’ interpretation of Wisconsin campaign-finance law in support of their John Doe investigation,” Rivkin asserts in Wednesday’s notice on the civil rights case.

From there, a full page in the four-page motion is redacted, in keeping with the John Doe’s gag order that imposes possible jail time for violating its secrecy terms.

John Doe probes are similar to grand jury investigations in that the secret proceedings provide the power of subpoena and compel witnesses to testify to determine whether charges are warranted.

The plaintiffs go on to insist that the prosecutors’ legal theory is “even less defensible than the aggregate limits struck down in McCutcheon. Those aggregate limits concerned only contributions, not independent expenditures.”

The conservative targets argue that the McCutcheon ruling indicates that had the John Doe prosecutors’ coordination theory been presented to the U.S. Supreme Court, “the judgment would have been 9-0 to strike it down.”

“Defendants legal theory is not just unsupportable, but baldly so,” Rivkin wrote.

O’Keefe could not be reached for comment. The John Doe prosecutors have declined to comment on anything related to the investigation.

The latest politically charged John Doe probe has targeted at least 29 conservative organizations, attempting to dig up evidence of illegal coordination between the groups and Republican Gov. Scott Walker’s campaign during Wisconsin’s unprecedented partisan recalls of 2011 and 2012.

Investigators conducted pre-dawn raids at the homes and offices of targets, seized electronic equipment and other property, and have demanded political donor lists.

In January, the investigation’s presiding judge quashed subpoenas because the prosecution had failed to prove probable cause. Prosecutors have appealed that decision.

“The issue in this case is the scope of Wisconsin’s campaign finance laws. The State’s theory is that various parties engaged in illegal coordinated activities during the recent recall elections. I concluded, however, that the coordinated activities are not prohibited under the statutes,” Judge Gregory Peterson wrote in a sealed document obtained by Wisconsin Reporter.

Contact M.D. Kittle at