Wisconsin John Doe case could prompt finance rule

CAPITOL NEWSLETTER
Matt Pommer • Wisconsin Newspaper Association

The Wisconsin Supreme Court is certain to uphold the new rightto work law passed last year by the Republican-dominated Legislature and signed by Gov. Scott Walker, also a Republican.

The law prohibits union-shop contracts under which employees must pay dues or “fair share” payments to the union.

Dane County Circuit Judge William Foust has agreed with a union argument that requiring services to be provided to those not making payments was an illegal “taking.’’ He struck down the law.

Republicans were confident his decision would be overturned on appeal. It certainly would be if it were to get the whole way to the State Supreme Court.

Walker cheerfully calls it a “freedom to work” law that helps workers. In truth it is a law that weakens unions and provides a measure of “freedom” for employers.

The seven-member State Supreme Court has five conservatives. Business interests have contributed heavily toward their election.

Editorial writers correctly describe it as a “highly politicized” Supreme Court. It’s hard to imagine the conservative court striking down any significant legislation drafted by the Republican Legislature and Republican governor.

The right-to-work struggle has grabbed headlines as spring unfolded in Wisconsin.

But a much more important case for Wisconsin politics, and indeed the whole nation, is in federal court. At issue are the John Doe investigations into campaign ties between conservative donors and the governor.

The head of the Government Accountability Board has said that Walker was the primary target of the second John Doe probe.

The State Supreme Court ended the John Doe investigation saying the probe had been based on an invalid legal theory. It ruled without hearing oral arguments on the issues.

In that stunning decision, the state high court allowed unregulated coordination between private interest groups and candidates, citing the First Amendment.

Wisconsin law had long barred cooperation between candidates and private groups that pay for radio and television ads in the weeks and months leading up to election.

U.S. Judge Lynn Adelman, who is presiding over the John Doe review, noted that the state high court decision was the first to hold the First Amendment protected coordination.

Adelman noted the state decision is much broader than the U.S. Supreme Court’s view of campaign activities and coordination.

“Is that a new federalist court we now have?” asked Adelman.

Among the issues at the federal court is what to do with the evidence collected in the second John Doe investigation. The state high court ordered that all evidence collected by Milwaukee District Attorney John Chisholm be turned over to it.

Lawyers for Chisholm said that evidence might be destroyed if turned over to the court.

There obviously are details like control of evidence to be handled. But the overriding issue is whether the First Amendment effectively allows unregulated coordination between candidates and their backers.

In future years it could end up being an important First Amendment issue before the U.S. Supreme Court. This “Wisconsin Case” might be a vehicle to look at all of America’s campaign finance issues.

It could be more important than the right-to-work law.


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