There was a big development in the Republican Party's shadow primary this week, with the news that Governor Scott Walker of Wisconsin is under investigation for running a "criminal scheme" to dodge campaign-finance laws. According to court documents unsealed Thursday, state prosecutors believe that Walker and his political team illegally coordinated a political spending spree among conservative groups during Wisconsin's 2011–2012 recall elections, shuffling millions of dollars through a network of nonprofits, some of which appear to have just been shells set up to take in unlimited secret donations.
The allegations make Walker the second Republican governor accused of being a criminal this year. But really, he and his campaign have challenged one of the big absurdities about campaign-finance laws in the post–Citizens United era. While there are still regulations on donations to candidates, there are no such limits for outside spending groups, as long as they're not directly working for the campaign. This is obviously a false distinction. The Walker campaign just stopped keeping up pretenses, realizing that it is much more efficient for everyone to just work together.
"The evidence shows an extensive coordination scheme that pervaded nearly every aspect of the campaign activities during the historic 2011 and 2012 Wisconsin Senate and Gubernatorial recall elections," special prosecutor Francis Schmitz wrote in a December motion made public yesterday. The motion goes on to quote an email that Walker sent to GOP mastermind Karl Rove explaining that his campaign adviser R. J. Johnson was orchestrating the expenditures:
"Bottom-line: R. J. helps keep in place a team that is wildly successful in Wisconsin. We are running 9 recall elections and it will be like 9 congressional markets in every market in the state (and Twin Cities)," Walker wrote.
Prosecutors argue that this was all an illegal scheme to violate campaign-finance rules against direct coordination between candidates and outside political groups. "No court has ever recognized that secret, coordinated activity resulting in 'undisclosed' contributions to candidates' campaigns and used to circumvent campaign finance laws is protected by the First Amendment," Schmitz wrote. "Accordingly, the purpose of this investigation is to ensure the integrity of the electoral process in Wisconsin."
That Walker would try to dismantle the remaining barriers steming the flow of dark money into politics is not surprising. Walker, you may recall, is the guy who, in 2011, asked a prank caller pretending to be one of the Koch brothers to help out state lawmakers who had voted for his bill to undo collective bargaining for public-sector unions. His gubernatorial record rubs all of the right wing's erogenous zones: tax cuts, abortion restrictions, "traditional marriage," et al. In the wake of Christie's Bridgegate collapse, Walker has emerged as a 2016 front-runner, a consensus candidate who can unite the Tea Party base with the GOP Establishment. That didn't happen by accident.
For Democrats, the news was an early Christmas present, playing right into the argument that Republicans are pawns of the Koch brothers and other shady interest groups. "At this point, Scott Walker should be more concerned about losing his re-election in Wisconsin than any national ambitions," said Gwen Rocco, communications director for American Bridge, a Democratic super PAC. "Between the spiraling scandals plaguing Walker and Christie and their respective floundering economies, any notion that the GOP's darling governors would save the party's 2016 hopes should be dead."
Melissa Baldauff, a spokeswoman for the Wisconsin Democratic Party, played it a little more cool. "I think the allegation by prosecutors that Scott Walker was at the center of an expansive criminal scheme speaks for itself," she said in an interview.
Politics aside, the real question here is whether coordinated political spending between campaigns and outside groups is actually illegal, or whether federal judges will rule that, like independent expenditures, it is protected by the First Amendment. Since the court documents were made public Thursday, Walker and other conservatives have hit back hard against the argument that the campaign spending coordination was illegal, arguing that the investigation is just a political witch hunt aimed at derailing his 2014 gubernatorial reelection campaign. "No charges, case over," the governor said in an interview with Fox & FriendsFriday morning.
Walker points out, correctly, that two judges have already ruled in favor of the latter and halted the investigation into the recall campaign. Prosecutors appealed the case and have asked the Seventh Circuit Court to reverse the earlier ruling. "It still remains to be seen what the appeals court judges will rule on the question of whether this was protected by the First Amendment," said Donald Downs, a professor of political science and law and the University of Wisconsin-Madison.
"If they court reverses the earlier opinion and says that the campaign coordination isn't protected free speech, this is going to end up in the Supreme Court," Downs added. "And believe me, they'll take it. They're very hot on these issues right now."