Wisconsin conservatives are firing back at the Milwaukee Journal Sentinel, the state’s largest newspaper, over its coverage of what prosecutors wanted to do in the John Doe investigation.
That would be, remember, the John Doe investigation that two federal judges stopped. That would be the John Doe investigation that resulted in no criminal charges being filed.
Marquette University law professor Rick Esenberg uses the Journal Sentinel’s own web page:
The Journal Sentinel’s Editorial Board thinks that the law is clear: Outside groups cannot coordinate with a candidate without being deemed to have made a contribution to the candidate — even when the ads run by the group do not advocate for the election or defeat of anyone.
But lawyers who practice in this area can’t seem to reach the newspaper’s serene confidence about what is and is not permitted. The two judges who have ruled on the matter certainly didn’t agree with these journalists. Let me explain why.
We must start with the Supreme Court’s distinction between “express” and “issue” advocacy. Express advocacy is any communication that has no reasonable interpretation other than a call to elect or defeat a candidate. Everything else is issue advocacy — even if the speaker mentions a candidate and “really” intends to influence an election.
State law says that a person or group who spends money to advocate for or against the election of an expressly identified candidate must file an oath of non-coordination. But that applies only to express advocacy, not the kind of issue advocacy involved here.
State law also says that if a “committee” that cooperates or consults with a candidate is deemed to be a subcommittee of that candidate, contributions to and expenditures by it are treated as a contribution to the candidate and subject to all the limitations on candidate contributions
Even the state Government Accountability Board thinks that definition is too broad to pass constitutional muster. But there is a larger problem. A group can be a “committee” only if it receives contributions or disbursements for a “political purpose.” Do groups that do only issue advocacy act for a “political purpose”?
State law defines “political purpose” as anything intended to influence an election. A 1999 state Court of Appeals decision, Wisconsin Voter Action Coalition, relied on that definition to hold that coordinated issue advocacy could be considered a contribution. “Political purpose,” it said, is not limited to express advocacy.
We now know that the WVAC decision was wrong. Last month, the 7th Circuit U.S. Court of Appeals, in a case called Wisconsin Right to Life vs. Barland held that the definition of “political purpose” relied on in WVAC is unconstitutional. It said that “political purpose” must be limited to express advocacy or its functional equivalent, i.e., communications that cannot be reasonably interpreted as anything other than a call to elect or defeat a candidate.
WVAC was the basis for the Doe prosecutors’ theory. No one disputes that these independent groups did anything other than issue advocacy. The two judges who so far have rejected the prosecutors’ theory may have simply anticipated the 7th Circuit’s decision rejecting WVAC’s approach.
Perhaps limits on coordinated issue advocacy can be reconciled with Barland. But, at the very least, it means that coordination must be defined very narrowly to protect the constitutional rights of candidates and independent groups. It seems, for example, that much, if not all, of the “issue advocacy” alleged to have been coordinated with Walker actually took place in elections in which Walker was not running: the Senate recalls. To say that a group cannot coordinate with a candidate who is not running because he “wants” some other candidate to win would be unprecedented. Such a theory has almost no chance of surviving judicial review.
In addition, even if regulation of coordinated issue advocacy can somehow survive Barland, the First Amendment requires clarity and breathing room. There must be a very strict definition of coordination requiring an express agreement between a candidate and an independent group on the particulars of the communications to be made by the group. Coordination cannot be implied from fundraising, common consultants or more general communications between a candidate and a group.
Any more expansive definition would unduly burden normal political speech and the freedom of association. Indeed, it night even sweep President Barack Obama into its net. As The Wall Street Journal has reported, his campaign blessed fundraising for Priorities USA, a liberal super PAC. If that is unlawful coordination (and I say it’s not), then perhaps our governor and our president can share a cell.
Outside the print side of Journal Communications is Matt Kittle:
It’s been pretty clear where legacy news outlets statewide and nationwide stand on the Republican governor who toppled public-sector collective bargaining in the Badger State — a very dangerous man for organized labor and the armies of the left.
But last week’s headlines from the Milwaukee Journal Sentinel to the Washington Post screamed of Walker’s “criminal scheme,” taking up the John Doe prosecutors’ descriptor as the gospel truth.
Buried far beneath in the mainstream’s coverage are the key facts in the John Doe story: two judges, including the presiding judge of the long and secretive investigation, have declared the prosecutors’ theory that dozens of conservative organizations illegally coordinated with Walker’s campaign is wrong.
U.S. District Court Judge Rudolph Randa shut down the probe last month, arguing the prosecutors probably wouldn’t prevail in a civil rights lawsuit against them. …
What the nearly two-year-old John Doe probe into these conservatives shows is that the prosecutors and the state Government Accountability Board don’t understand campaign finance law, haven’t kept up on U.S. Supreme Court rulings on campaign finance and the First Amendment and, more frightening than ignorance, is the allegation that the left is attempting to use prosecutions and the accompanying “paramilitary-style” raids as a way to change laws they do not like.
The mainstream media doesn’t seem to consider that possibility, however.
Perhaps mainstream outlets can take solace in the fact that left-fronted organizations across the country have simply loved those “criminal scheme” headlines so much they’ve taken them as their own.
The correct editorial stance is from the WSJ — not the Wisconsin State Journal, the Wall Street Journal:
The news reports are jumping on snippets of some 266 pages of documents that the Seventh Circuit Court of Appeals released to the public on Thursday. The breathless page-one stories claim that prosecutors believe Mr. Walker and his allies were part of a “criminal scheme” to coordinate their activities and thus violated campaign-finance laws.
The key point to understand is that this isn’t an indictment, and it isn’t even evidence built into a legal case. It is merely a prosecutorial theory floated to justify a secret grand-jury fishing expedition. The documents have been under seal. The Seventh Circuit released them only because they are related to a federal civil-rights lawsuit against the Wisconsin prosecutors that has already resulted in a federal judge stopping the John Doe with a preliminary injunction.
The other crucial point is that the two judges who have looked closely at the evidence have found no violations of law. To the contrary, both judges have ruled that the prosecutors’ theory of illegal campaign coordination is faulty and itself a violation of the defendants’ right to free political speech. The document dump amounts to prosecutors losing in court but then having the press treat the prosecutors’ claims as if they were the gospel truth.
Take the phrase “criminal scheme,” the words used by special prosecutor Francis Schmitz in December 2013 before John Doe Judge Gregory Peterson. The Wisconsin state judge demolished the charge in his ruling a month later in which he quashed the prosecutors’ subpoenas and ordered seized property returned to those under investigation.
The prosecutors failed to show evidence of probable cause that a crime had been committed, Judge Peterson wrote, because the political groups engaged exclusively in issue advocacy, which is protected by the First Amendment. “Before there is coordination, there must be political purposes,” the judge wrote. “Without political purposes, coordination is not a crime.” …
As it happens, the “coordination” prosecutors have decried in Scott Walker’s case is nearly identical to the “coordination” employed during the 2012 presidential campaign on behalf of President Obama. In February 2012, Mr. Obama’s official campaign committee “blessed” (as the Politico website put it) fundraising for Priorities USA Action, a liberal SuperPac that supported Mr. Obama and other Democratic candidates. The big dollars soon followed.
The disgrace is that all of this has been known for weeks or months, yet the media reports on Friday ignored or buried it. A reader of the New York Times and Milwaukee Journal Sentinel had to read far down the news stories to see any reference to this judicial repudiation. We realize that these liberal publications have been asleep on this story, but you’d think they’d have more respect for First Amendment law.
Meanwhile, the document dump is serving a political purpose that prosecutors have intended from the start—to tarnish Mr. Walker as he seeks re-election. The prosecutors “by their position appear to seek refuge in the Court of Public Opinion, having lost in this Court on the law,” Judge Randa wrote this week in an order on the unsealing of documents in his own court, shortly after the Seventh Circuit made its documents public. Their position in favor of unsealing is “at odds with their duty as prosecutors which is to see that in any John Doe proceeding the rights of the innocent are protected in pursuit of a criminal investigation.”
This is typical of the behavior of Milwaukee District Attorney John Chisholm and Assistant DAs Bruce Landgraf and David Robles from the beginning. The Democrats hired Mr. Schmitz, a nominal Republican, as special prosecutor to put a nonpartisan gloss on an investigation that the DAs realized would be seen for the political prosecution it was. …
The real “scheme” in Wisconsin is the attempt by prosecutors to criminalize political speech. This has national echoes in the attempt by the IRS to target nonprofit groups that also wanted to participate in politics. The courts sometimes catch up with these dirty tricks, but in the meantime in Wisconsin they can smear candidates and their supporters who have done nothing wrong.
The ridiculous thing is that liberals are supposed to believe in the concept of being innocent until proven guilty. Walker was not proven guilty. Walker was not charged with anything at all.
Kevin Binversie describes Journal Sentinel John Doe reporting as “headline porn”:
“Headline Porn,” or as it is more commonly called in marketing circles, “Clickbait” has exploded in recent years. With mass media becoming more and more reliant on revenue from their online presence, click rates (how often a webpage is accessed or link is “clicked”) have become media’s most important metric. Things like “getting the story right” have been replaced by “who got there first” and “how many eyeballs saw it?”
Why is that? Because if a website can show their ad buyers click rates are up, they can then start increasing ad rates. The more people are clicking at salacious headlines, the more revenues for the website or its parent company.
That’s why it is impossible to not see “Headline Porn” in the way papers like the Wisconsin State Journal and Milwaukee Journal Sentinel handled last week’s document dump in the John Doe. Both clearly could have had more balanced headlines on the release, but instead made conscious decisions to focus on the failed “criminal scheme” angle pushed by prosecutors. “Criminal scheme” and other loaded headlines ensure people will latch onto the clickbait. From there, the paper gets more clicks in the papers’ forum as readers “debate” each other.
Media ethics experts have long had a hard time handling sensationalized headlines, since they have long been a tradition of mass media and newspapers (in fact, it’s how Deadspin defended itself from “clickbait” charges) from its earliest moments. Often times, you’d get a defense of “While it may sell individual editions, they’re rarely the lion’s share of newspaper revenue.”
You can’t say that anymore. With the collapse of classified ads thanks to sites like Craigslist, newspapers have increasingly exploited their online presence through click rates and online paywalls to maintain revenue streams. With more and more online options available to a public with diversified tastes, online new sources now make it a large part of their business plans.
How far off would one be to accuse the Journal Sentinel editors of not only pursuing the angle they are on the John Doe not only for ideological reasons, but because it’s a revenue gold mine for them?
Thus is the media landscape we now live in. Objectivity and hard news have taken a back seat to “headline porn.” Is it any wonder the media is looked upon so poorly by the public?
How does the Journal Sentinel feel about such criticism? Media Trackers has an answer:
Marty Kaiser is one of the most important people at the Milwaukee Journal Sentinel, and in a lengthy e-mail to an angry reader, he tipped his hand to the bias that exists at the struggling – but still influential – newspaper. Kaiser’s official title is editor and vice president for digital content, and that is perhaps why he chose to respond to a reader e-mail criticizing his paper’s reporting about a John Doe investigation involving conservative groups and Gov. Scott Walker. …
Kaiser claimed in his defense of Journal Sentinel reporting about the two John Doe investigations that, “Scott Walker was never known to be a target of the first John Doe investigation that has been closed.”
Kaiser’s assertion is important because the Journal Sentinel‘s coverage of the released documents has focused on Walker, with the paper even going so far as to create a graphic mapping out the prosecutors’ discredited theory of Walker’s alleged criminality and presenting it as if it were very possibly fact.
But if Kaiser knew that “Walker was never known to be a target of the first John Doe” that raises serious questions about his editorial skills and his paper’s impartiality.
On March 10, 2012, Daniel Bice – a columnist who also contributes to some news stories – wrote that Walker had created a legal defense fund to pay for mounting legal fees coming as a consequence of the first John Doe probe. “Several election lawyers said creation of the defense fund serves as a tacit acknowledgment that Walker is under investigation for election law violations,” Bice wrote.
The story noted that other Wisconsin politicians have set up legal defense funds when they are the targets of criminal investigations.
Two days later, on March 12, 2012, Bice went on the air with WTDY radio in Madison to explain what the legal defense fund said about the state of the John Doe probe and Walker’s relationship with it. While he didn’t say specifically that Walker was a target of the probe, he did reiterate that some lawyers he spoke with thought the move revealed Walker to be a target of the probe. He also reiterated his personal knowledge that other Wisconsin politicians who did this were an integral part of a criminal investigation.
On November 26, 2012, the Journal Sentinel published a report by Associated Press reporter Scott Bauer that shared Walker’s assertion that he was not a target of the probe, but also reiterated developments and partisan claims that suggested Walker might have had a role in what led to the investigation.
By running stories that gave voice to the theory that Scott Walker was part of the first John Doe probe, the Journal Sentinel made a lie of Kaiser’s claim that Walker’s involvement with the second John Doe was big news because “Walker was never known to be a target of the first John Doe.”
It was Journal Sentinel reporting that heavily contributed to the theory by some that Walker was a target of the first John Doe.
Another claim Kaiser made is that Wisconsin’s campaign finance regulations are determined by elected officials. While partially true, the claim is also critically false in two key respects. “Wisconsin’s elected representatives passed campaign finance laws years ago as an effort to thwart corruption and let the public know who were the primary financial backers of election campaigns,” Kaiser wrote.
But two campaign finance regulations that impact fundraising, spending and political coordination (three things involved in the now-stalled John Doe probe) were fabricated wholesale by the unelected experts and staff at the state Government Accountability Board.
After the U.S. Supreme Court altered the landscape of campaign finance with its famous decision in Citizens United v. Federal Election Commission (2010), the GAB was forced to modify the way it regulated political speech in Wisconsin. It quickly promulgated GAB 1.91, a rule that applies “most PAC duties to organizations” that want to engage in political speech.
Another rule, GAB 1.28, was modified to move “all issue advocacy that refers to a candidate in the lead-up to an election into the state PAC system.”
While a federal appeals court has treated both rules harshly, they were both created by the GAB without a legislative vote or specific statutory authorization to do so.
By overlooking his paper’s reporting – which fed speculation that Walker was the target of the first John Doe – and by broadly and incorrectly classifying all campaign finance regulations as results of the legislative process, Kaiser demonstrated his unfamiliarity with the issues involved in this second John Doe, and revealed that his paper is willing to overlook past reporting and present facts for the sake of a sensationalized headline.