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Scott Walker and the Club for Growth: Coordinating Corruption

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The case against Scott Walker's and his aides turns on the idea of unlawful cooperation. In Wisconsin as in a number of other states, it is illegal for campaigns to coordinate political activities with outside funding groups. That takes a little explaining.

What appears to have been going on is that senior aides to Walker, R.J. Johnson and Deborah Jordahl, were directing the distribution of money and the advertising efforts of a dozen groups with all the money funneled through Wisconsin Club for Growth. Johnson, incidentally, is also the chief advisor to the Wisconsin Club for Growth. Karl Rove was involved, as was money from the Koch Brothers--this was not a small or local effort. The newly released emails include some provocative statements: at one point Johnson is quoted as declaring "we own the Club for Growth."

Despite this rather interesting evidence a federal judge in Milwaukee, Rudolph T. Randa, ordered the investigation stopped. Judge Randa made two closely related arguments. Closely related, and deeply disturbing.

First, Randa concluded that "political activity" only includes "express advocacy." This is the magic words theory of campaign finance regulation: an ad that says "vote for Scott Walker" is express advocacy, an ad that says "Wisconsin needs a governor who will stand up to the teachers' unions and favors tax cuts" is merely issue advocacy and therefore does not count as political activity. The distinction is as formalistic and as tissue paper thin as it sounds, a legal fiction only a lawyer could love. But Randa did not invent this particular bit of legal obfuscation, the federal and Wisconsin courts have done that before. It is disturbing to think that limits on political corruption can be as evaded as easily as this, but there it is. Since there was no political activity going on, Randa ruled that the Club for Growth was a private speaker exercising its First Amendment privileges. The fact that CFG was acting as a conduit for a dozen nondisclosed donor organizations whose anonymity was guaranteed by their status as non-political "social welfare" groups (hence not bound by disclosure requirements) was not relevant, nor was the direct coordination and control over expenditures by the Walker campaign.

But that's only the first argument. In his Order stopping the investigation Judge Randa makes a second argument.

Coordination does not add the threat of quid pro quo corruption that accompanies express advocacy speech...A candidate's coordination with and approval of issue advocacy speech, along with the fact that the speech may benefit his or her campaign because the position taken on the issues coincides with his or her own, does not rise to the level of 'favors for cash.' Logic instructs that there is no room for a quid pro quo arrangement when the views of the candidate and the issue advocacy organization coincide.

Coordination plus benefit to the campaign plus expenditure does not raise any risk of corruption if the views of the candidate and the views of the organizations coincide. The "logic" in this argument is somewhere between laughable and appalling. But to really see why, we need to break it down into its component propositions.

Judge Randa's argument that so long as there is a coincidence of views between a candidate and a group there can be no danger of corruption is mindblowing. The Walker case, after all, does not present the worst possible situation. In the Walker case, it seems clear that the campaign was controlling the activities of the "advocacy" groups. But coordination is a two way street. So imagine this: a group, call it the Club for Growth, funnels money from a dozen anonymous organizations and makes it available to organizations to pay for ads supporting candidates that do not mention the candidate by name. According to Randa, that's fine so long as there is perfect coincidence in their views. And how is that coincidence of views to be established? Simple: the Club for Growth can review every campaign ad, position statement, and speech the candidate intends to give ahead of time and politely suggest amendments. Not, of course, to purchase an ideological position on any kind of quid pro quo basis, just to be sure that their views coincide. According to Randa's logic as long as it works the direct supervision of campaigns perfectly legal. This is not just buying candidates, this is buying candidates on spec.

And that is pretty much exactly what the Club for Growth and its backers are after. The Club for Growth does not care about Scott Walker's political embarrassment or public opinion; they made that clear when they sought the release of the emails in the first place. The Club's goal is to get the U.S. Supreme Court to strike down all laws limiting coordination as restrictions on free speech. That would be the freedom to funnel anonymous corporate contributions through shell organizations which then operate under the control of or in control over political candidates' campaigns. And all of it could be done in secret and tax free because, after all, none of it is "political activity."

Given the bizarre legal fictions at work, it may turn out that everything that Walker and his aides did was technically legal under the prevailing interpretation of Wisconsin law despite the fact that their activities manifestly represent complete subversion of the law's intent. But that is not remotely the point. The U.S. Supreme Court has twisted the Constitution to invent a legal doctrine that prevents We the People from attempting to preserve our democracy against oligarchy and corruption. Judge Randa and the groups that poured money into Wisconsin to help Walker when it suited them are looking to finish the job.