On July 16, the Wisconsin Supreme Court shut down the second of two investigations that had resulted in guilty pleas of six Scott Walker appointees who had disregarded the line between civil servant and political operative.
“To be clear, this conclusion ends the John Doe investigation because the special prosecutor’s legal theory is unsupported in either reason or law,” read the opinion that eliminated a hurdle between Walker and the Republican presidential nomination.
Unique to Wisconsin law, a John Doe investigation allows a special prosecutor to seize documents and take depositions while protecting the identity of a targeted “John Doe.”
The four-justice Republican majority leaned heavily on the U.S. Supreme Court’s Citizens United decision, holding that the investigation had trampled the First Amendment rights of political donors exercising free-speech rights by making political contributions (up to $1 million per individual).
The justices also declared the investigations a violation of Fourth Amendment privacy protections of the Milwaukee County staff, Walker’s campaign workers and nonprofit groups engaged in campaigns indirectly supporting Walker.
Now, as Walker’s presidential campaign gets under way, conservative think tanks and news outlets—the Heritage Foundation, the Cato Institute, The Weekly Standard, et al.—are trying to characterize the investigations as a political witch hunt.
The comments of Heritage’s Hans von Spakovsky, who usually limits his advocacy to voter-suppression, are representative of the campaign to discredit state investigators. According to Von Spakovsky, Kelly Rindfleisch was the victim of a “dragnet” run by Milwaukee District Attorney John Chisholm, whose wife’s dislike for Walker was the motive behind the investigation.
Rindfleisch, Walker’s deputy chief of staff while he was Milwaukee County executive, pled guilty to official misconduct and was sentenced to three years probation and six months in jail.
The “dragnet,” in fact, began when Walker informed the DA that $10,000 was missing from a nonprofit group Walker had placed in charge of an annual veterans’ fundraising event previously run by a Veterans of Foreign Wars post.
Investigators searching county computers and files tracked down two individuals who had stolen the funds, one a Walker political operative who had served as his chief of staff at the county. But investigators also found a number of unrelated offenses that resulted in the prosecution and sentencing of the six county employees with close ties to Walker.
The 1,600 pages of Rindfleisch emails obtained by state investigators made it quite evident that Walker loyalists on the Milwaukee County payroll had worked on his campaign for governor during office hours.
Walker says he was unaware of any campaign work conducted by county staff. The emails belie that defense. He was copied on much of the correspondence: some as routine as daily press clips and information on events, others emails discussing campaign tactics and strategy.
While receiving emails is not proof they were read, Walker on occasion responded. In a review of the emails, I found 250 responses from Walker, written while he was Milwaukee County administrator and a candidate for governor. Some were one-word responses; others described policy positions, political tactics and press coverage.
One email Walker sent to his county staff on the day The Milwaukee Sentinel Journal broke a story about a county employee posting political comments on news sites suggests how much Walker knew.
“We cannot afford another story like this one. No one can give them any reason to do another story,” Walker wrote. “That means no laptops, no websites, no time away during the workday, et cetera.”
The DA’s Dragnet?
The investigation of Walker’s fundraising involved more than a lone DA.
The Wisconsin Government Accountability Board (GAB) is comprised of six former judges recommended by a screening committee of justices from the state’s appellate courts, nominated by the governor and confirmed by a two-thirds majority of the state Senate.
After examining records of millions of dollars that 501(c)(4) nonprofit groups, including Wisconsin Manufacturing & Commerce and the Wisconsin Club for Growth, had spent on “independent” issue campaigns supporting Walker, the GAB unanimously authorized an investigation of “individuals who worked for, or were agents of, Friends of Scott Walker (“FOSW”)…[who] cooperated and coordinated with various organizations, including Wisconsin Club for Growth and WMC Issues Mobilization Council, in obtaining contributions and making disbursements for the purchase of television, radio, and print advertising.… The activity engaged in allegedly included Governor Walker personally asking a number of donors to make contributions to the Wisconsin Club for Growth” (emphasis added).
Three county DAs also requested investigations. Based on information obtained in the first John Doe investigation, a state judge authorized a second.
Under Wisconsin election law, it is illegal for candidates or members of campaign staffs to coordinate their work with groups whose IRS nonprofit status prohibits direct support of political candidates.
Investigators turned up hundreds of emails describing precisely the coordination proscribed by Wisconsin state law. Examples (with emphasis added) follow:
- An August 18, 2011, email from Keith Gilkes to Scott Walker with “suggested remarks by RJ” for a “Donor Call”: “Our efforts were run by Wisconsin Club for Growth and operatives R.J. Johnson and Deb Jordahl, who coordinated spending through 12 different groups. Most spending by other groups was directly funded by grants from the club.” The email also reflects that “Wisconsin Club for Growth raised 12 million dollars and ran a soup to nuts campaign.”
- An April 28, 2011, email from Kate Doner to R.J. Johnson that states: The Governor is encouraging all to invest in the Wisconsin Club for Growth. Wisconsin Club for Growth can accept Corporate and Personal donations without limitations and no donor disclosure.”
- A September 7, 2011, email from Kate Doner to Scott Walker, R.J. Johnson, Keith Gilkes and Kelly Rindfleisch, containing “quick thoughts on raising money for Walker’s possible recall efforts.” In regard to “CFG” (Club for Growth), these thoughts were suggested: “Take Koch’s money”; “Get on a plane to Vegas and sit down with Sheldon Adelson. Ask for $1m now”; “Corporations. Go heavy after them to give”; “Create a new c4.”
Keith Gilkes, Walker’s former chief of staff in the governor’s office, is currently a senior advisor to his presidential campaign; R.J. Johnson was director of the Wisconsin Club for Growth and a Walker political advisor; Kate Doner is a Walker fundraiser; Deborah Jordahl was a consultant for Friends of Scott Walker; Rindfleisch, who found work with a political consultant retained by Walker while her sentence was on appeal, concludes her six months of supervised house arrest this month.
Compromised Justices Gut Finance Law
Although confronted by abundant proof of coordination among Walker, his campaign and nonprofit political organizations paying for “independent” issue advocacy ad campaigns attacking Walker’s opponents, the Republican justices on the state Supreme Court shut down the John Doe investigation.
They also rewrote Wisconsin’s campaign-finance law, ruling that state legislators’ definition of “political purposes” regarding advocacy campaigns run by 501(c)(4) nonprofits is so broad that it violates First Amendment speech rights of donors (whose identities are not subject to disclosure).
The ruling also makes it almost impossible to prosecute an elected official engaged in a quid pro quo transaction, as long as a third party serves as a bag man.
“The compelling governmental interest that justifies the regulation of express advocacy (the prevention of quid pro quo corruption) ‘might not apply to’ the regulation of issue advocacy,” the opinion reads.
Thus, there could have been no alleged quid pro quo conflict when Governor Walker advanced legislation specifically benefiting the Geobic Tactonite mining company—one year after its executives contributed $700,000 to a nonprofit running an “independent” issue advocacy campaign supporting Walker.
Equally important, in declaring unconstitutional the restrictions on tax-exempt, non-profit groups running advocacy campaigns, the justices vindicated themselves. Wisconsin Manufacturing & Commerce, which had spent millions electing Walker, had also spent $6.75 million on “independent” issue ads attacking opponents of the four Republican justices.
The four conservative justices were carried into office on a tide of WMC money that paid for advocacy ads attacking their opponents. Part of the same vast pool of corporate cash that initially elected, then kept Scott Walker in office.
Yet there were no recusals. No reservations. The court was put in place to serve the interests of the governor. In July, it delivered.
Following the decision, Governor Walker urged legislators to do away with the Government Accountability Board, which oversees Wisconsin’s elections.