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Wisconsin Legislature Abolishes “John Doe” Investigations for Campaign Finance Violations, Seeks to Amend Campaign Finance and Ethics Laws

November 2015

By Jan Witold Baran and Stephen J. Kenny

In the wake of the Wisconsin Supreme Court’s decision to shut down the state’s “John Doe” investigation into whether Governor Scott Walker’s campaign illegally coordinated with conservative advocacy groups, Governor Walker recently signed into law a bill that curtails prosecutors’ ability to use secretive investigatory tactics. The Governor and the legislature are also considering other changes to the state’s campaign finance laws and enforcement system.

Last July, the Wisconsin Supreme Court put an end to a state prosecutor’s “John Doe” investigation of Governor Walker’s campaign and various conservative advocacy groups. The “John Doe” statute in Wisconsin grants special powers to prosecutors in criminal investigations—such as the authority to compel witness testimony and the power to issue subpoenas to witnesses to submit documents—thereby avoiding the need to impanel a grand jury. Significantly, a judge can order the proceedings to be done in secret and place gag orders on witnesses.

The Wisconsin Supreme Court ended the “John Doe” probe because the conduct alleged by the state prosecutors was not illegal. Prosecutors alleged that Walker’s campaign illegally coordinated with issue advocacy groups during the course of Walker’s 2012 recall campaign. The court concluded, however, that Wisconsin’s campaign finance statutes validly extend only to express advocacy communications. Because issue advocacy communications—coordinated or not—are beyond the reach of the state’s campaign finance laws, the prosecutors did not offer a valid theory of illegal coordination. Consequently, the court ordered the termination of the “John Doe” probe.
The legislature, animated by perceived abuses by the prosecutors during the investigation of illegal coordination, passed a bill that restricted the use of “John Doe” investigative powers to serious felonies and certain other violent crimes. In other words, campaign finance and ethics allegations are no longer within the purview of the “John Doe” statute. Of course, prosecutors may still investigate such crimes, just without the extraordinary tools offered by the “John Doe” statute.

The state legislature also passed two other campaign finance bills recently. First, the legislature passed a bill that abolishes the Government Accountability Board (GAB) and replaces it with two separate agencies with jurisdiction of campaign finance and ethics, respectively. The GAB currently has jurisdiction of all campaign finance and ethics laws. Officially nonpartisan, the GAB came under fire for its role in the “John Doe” coordination investigations. The replacement agencies, by contrast, would include partisan appointees, much like the Federal Election Commission.

The second bill limits disclosure requirements to those entities whose “major purpose” is engaging in express advocacy or supporting candidates. The legislation—which is a response to the U.S. Court of Appeals for the Seventh Circuit’s recent decision in Wisconsin Right To Life, Inc. v. Barland, 751 F.3d 804 (7th Cir. 2014), holding the existing disclosure provisions unconstitutionally vague—specifies that an entity’s major purpose is based on the entity’s organizational documents or the entity’s own representations, as well as the proportion of the entity’s spending dedicated to express advocacy and contributions. Governor Walker is expected to sign both bills.