The Investigation Into Scott Walker Could Be Way, Way Bigger Than Scott Walker

06/25/2014 07:37 am ET | Updated Jun 27, 2014

WASHINGTON -- An investigation targeting Wisconsin Gov. Scott Walker (R) for alleged illegal coordination with independent conservative groups during his 2012 recall election has been thrown into limbo by a lawsuit that could turn into the next big challenge to campaign finance limits.

The case has the potential to blow a hole in anti-coordination rules in Wisconsin and beyond -- a hole that would effectively wipe away campaign contribution limits by allowing candidates to control the unlimited and secret contributions raised by not-really-independent groups.

For the last few years, Wisconsin prosecutors have been looking into allegations that Walker and his aides illegally coordinated with a dozen groups, ranging from the Wisconsin Club for Growth to the Koch brothers' Americans for Prosperity, to support both the governor's recall campaign and those of Republican state senators. After its offices were raided and documents seized by prosecutors, the Wisconsin Club for Growth sued, arguing that the investigation itself was a violation of its First Amendment rights to free speech and free association.

Moreover, the group contended it had not violated the state's anti-coordination law because the ads it ran in coordination with the Walker camp constituted issue advocacy, which the group claims is not covered by the anti-coordination rules. While the ads named specific candidates for office, the group said, they did not rise to the level of electoral activity because they didn't urge viewers to "vote for" or "vote against" anyone.

In January, a state judge agreed with the Wisconsin Club for Growth that Wisconsin law did not cover coordination between candidates and groups engaging in issue advocacy, even if the attack ads in question simply sidestepped the rules by avoiding the explicit "vote for/against" language.

In May, U.S. District Judge Rudolph Randa concurred with the state judge in a far more sweeping ruling. Analogizing the investigation to "attempts to purify the public square" that lead to "the Guillotine and the Gulag," Randa suspended the probe and ordered that all evidence be returned immediately. He held that prosecutors' interpretation of the state law as it might apply to Walker and the groups would violate their First Amendment rights -- by taking campaign restrictions beyond the constitutional limit -- and thus so did the investigation. The judge repeatedly referenced the restricted definition of political "corruption" laid out by the Supreme Court in its recent Citizens United and McCutcheon decisions.

"The plaintiffs have found a way to circumvent campaign finance laws, and that circumvention should not and cannot be condemned or restricted," Randa wrote. "Instead, it should be recognized as promoting political speech, an activity that is 'ingrained in our culture.'"

The case has moved to the U.S. Court of Appeals for the 7th Circuit, which has already stayed Randa's ruling, thereby allowing the investigation to continue. The prosecutors argue that the state's anti-coordination law is meant to cover coordination of issue advocacy.

"If Randa's ruling stands on appeal, then the rules against coordination between a candidate and outside groups would go out the window in Wisconsin," University of California-Irvine electoral law professor Rick Hasen wrote in Slate.

A recent report from professors Daniel Tojaki and Renata E.B. Strause of The Ohio State University Moritz College of Law warned that campaigns and independent groups are already doing everything in their power to coordinate without technically breaking these rules. Campaign staff complain, however, that they can't control the messages of the groups helping them.

"A frequent refrain from campaign staff was that even independent spending by 'friendly' sources was less useful than it could have been," the report states.

If it stands, Randa's ruling would open the door to this kind of greater control in Wisconsin. If the case finds its way to the U.S. Supreme Court, the five justices opposed to campaign finance limits could extend this loophole across the country.

Following Randa, the Supreme Court could find it unconstitutional to apply anti-coordination rules to issue advocacy in state and federal campaigns. This would essentially "eviscerate campaign contribution limits" across the country, Hasen told HuffPost.

There are national groups ready and willing to take advantage of another Supreme Court strike against campaign finance law.

In the 2014 midterm elections, groups controlled by the Kochs, including Americans for Prosperity and Freedom Partners Chamber of Commerce, have already spent tens of millions of dollars on ads attacking Democratic candidates in Senate battleground states. These ads are generally designed to meet the standards for issue advocacy.

In a world where the circumvention of coordination rules "should not and cannot be condemned or restricted," as Randa wrote, the Koch-linked groups could coordinate messaging in these issue advocacy spots and plan advertising buys with the campaigns they support. In effect, federal candidates and their campaigns would be able to direct the operations of groups that can accept checks for $10 million or $20 million from secret donors.

That's likely to sound a lot more tempting than running their election efforts through their own campaigns. After all, those campaigns are hampered: They have to abide by laws that limit them to a measly $5,200 per individual donor and require the public disclosure of the names of their donors.

UPDATE: A lawyer for the special prosecutor running the coordination investigation said on June 26 that Gov. Walker was not officially a "target" of the investigation.

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