New federal court documents released Thursday reveal that Gov. Scott Walker (R-WI) is the subject of a “Joe Doe” investigation. Prosecutors allege Walker was part of a “criminal scheme” to circumvent state election laws. While the courts are still mulling a motion by the dark money outside groups at the center of the allegations to stop the investigation, the facts of the case are yet another demonstration of the folly of the Supreme Court’s assumptions in the infamous Citizens United ruling.
The documents show that prosecutors believe illegal coordination occurred in the 2011 and 2012 Wisconsin Senate and Gubernatorial recall elections and that groups like the Wisconsin Club for Growth worked with Scott Walker’s campaign arm (“Friends of Scott Walker”) to arrange undisclosed spending by an array of pro-Walker tax-exempt organizations. They note that several individuals were working both for Friends of Scott Walker and Wisconsin Club for Growth at the time, and that Walker himself boasted of the coordination in an email to Karl Rove.
This is exactly the kind of coordination the Supreme Court assumed would not happen when they struck down limits on independent groups’ political spending in 2010. In his 5 to 4 majority opinion, Justice Anthony Kennedy wrote that outside groups running “independent” campaign ads would not lead to corruption or even the appearance of corruption. “The appearance of influence or access, furthermore, will not cause the electorate to lose faith in our democracy. By definition, an independent expenditure is political speech presented to the electorate that is not coordinated with a candidate,” he argued.
But as is illustrated by this case, the lines of what is and isn’t coordinated are often quite blurred. While candidates often claim they should not be blamed for the tactics of the outside groups that support them — Mitt Romney, for example, noted in a 2012 primary debate that he couldn’t tell a pro-Romney super PAC run by his former staffers to pull an ad “because it would violate federal law — they also often raise money directly for those groups.
And as The Daily Show pointed out earlier this year, candidates frequently even post online video footage that they hope supportive super PACs will “independently” choose to use in their advertisements.
A Walker campaign spokeswoman denied the allegations in an email to Politico on Thursday, noting that “two judges have rejected the characterizations disclosed in those documents.” But if the appellate courts ultimately accept the Wisconsin Club for Growth’s argument that the sort of coordination alleged is not illegal, it demonstrates just how much coordination is permissible in “independent expenditures”
An earlier investigation did not result in charges against Walker, but released emails and records from his former deputy Chief of Staff suggested that the governor may also have been involved in — or at least aware of — illegal coordination between his 2010 gubernatorial campaign and his Milwaukee County Executive office.