Here & Now

Mayer Breaks Down Federal Campaign Finance Laws

FREDERICA FREYBERG:

NOW FOR THE THOUGHTS OF AN EXPERT ON CAMPAIGN FINANCE, UW-MADISON POLITICAL SCIENCE PROFESSOR KEN MAYER. THANKS FOR BEING HERE.

KEN MAYER:

MY PLEASURE.

FREDERICA FREYBERG:

SO WHAT DO THE DOCUMENTS REVEAL, THE GUARDIAN’S REPORTING SHOW, IN YOUR MIND REGARDING COORDINATION BETWEEN THE WISCONSIN CLUB FOR GROWTH AND SCOTT WALKER?

KEN MAYER:

WELL THEY CONFIRM THAT THERE’S NO QUESTION THAT THERE WAS CLOSE COORDINATION WITH FUND-RAISING, EVEN STRATEGY. THIS WAS THE PURPOSE OR THE THEORY BEHIND THE INITIAL JOHN DOE TWO INVESTIGATION WAS THAT THE WALKER CAMPAIGN WAS COORDINATING WITH OUTSIDE GROUPS, WHICH UNDER THE PREVAILING LAW IN 2011 WOULD HAVE BEEN ILLEGAL, BECAUSE IT WOULD HAVE TURNED THEM FROM AN INDEPENDENT EXPENDITURE INTO AN IN-KIND CONTRIBUTION.

FREDERICA FREYBERG:

BUT IS IT ILLEGAL ANYMORE?

KEN MAYER:

IT’S NOT. THERE ARE TWO REASONS WHY IT’S NO LONGER ILLEGAL UNDER STATE LAW. THE FIRST IS THAT IN JULY OF 2015 THE STATE SUPREME COURT HELD THAT ISSUE ADVOCACY OR ADVOCACY THAT DOESN’T DIRECTLY ADVOCATE THROUGH LANGUAGE THE ELECTION OR DEFEAT OF A CANDIDATE IS COMPLETELY OUTSIDE THE REALM OF ANY REGULATIONS PROTECTED BY THE FIRST AMENDMENT. AND YOU ALSO HAVE THE LEGISLATURE ENACTING A STATUTE WHICH EXPRESSLY EXEMPTED ALL ISSUE ADVOCACY FROM ANY REGULATION UNDER CHAPTER 11, WHICH IS THE STATE ELECTIONS CODE.

FREDERICA FREYBERG:

WHAT ABOUT SO-CALLED POTENTIAL QUID PRO QUO HERE, THAT THIS REPORTING SEEMED TO KIND OF HINT AT, AT THE VERY LEAST, WHICH I UNDERSTAND THE U.S. SUPREME COURT HAS SAID IS CORRUPTION? DO THE CHECKS FROM THE LEAD PAINT MANUFACTURERS TO THE WISCONSIN CLUB FOR GROWTH AND SUBSEQUENT LEGISLATION TO LIMIT LEAD LIABILITY CONSTITUTE THIS QUID PRO QUO?

KEN MAYER:

AS A LEGAL MATTER, MOST LIKELY NOT BECAUSE UNDER THE WAY THE SUPREME COURT HAS INTERPRETED THE LAW, THAT IT REALLY DOES HAVE TO BE EXPLICIT IN THE SENSE THAT IT ALMOST HAS TO BE WRITTEN DOWN. I’M GIVING YOU THIS CHECK IN RETURN FOR SOME OFFICIAL ACTION OR LEGISLATION. THE MERE COINCIDENCE IN TIME BETWEEN A LEGISLATIVE ACTION OR VOTE AND A CONTRIBUTION DOES NOT BY ITSELF CONSTITUTE A QUID PRO QUO. AND AS THE SUPREME COURT HAS DEFINED IT IN A SERIES OF CASES, CITIZENS UNITED, MCCUTCHEON, IT HAS TO BE ALMOST LITERALLY AN OUTRIGHT ACT OF EXPLICIT BRIBERY FOR IT TO CONSTITUTE CORRUPTION.

FREDERICA FREYBERG:

AS FOR THE $3.5 MILLION IN CORPORATE FUNDS TOWARD JUSTICE PROSSER’S SUPREME COURT CAMPAIGN, A JUSTICE WHO DID NOT RECUSE AND THEN VOTED WITH THE MAJORITY TO SHUT DOWN THE JOHN DOE INVESTIGATION, DOES THAT FLY IN THE FACE OF CAMPAIGN LAW?

KEN MAYER:

WELL NOT SO MUCH CAMPAIGN LAW BUT THE REASON THE PROSECUTORS HAVE APPEALED TO THE SUPREME COURT IS THERE’S A 2009 SUPREME COURT CASE CAPERTON VS. MASSEY COAL WHERE THE SUPREME COURT HELD THAT UNDER SOME CIRCUMSTANCES WHEN THERE IS A SERIOUS RISK OF BIAS SUCH AS IN THAT CASE, WHERE A PARTY TO THE LITIGATION HAD MADE A SUBSTANTIAL CONTRIBUTION OR SPENDING ON BEHALF OF A JUDGE, THAT UNDER THE 14TH AMENDMENT DUE PROCESS, A JUDGE CAN BE REQUIRED TO RECUSE HIMSELF OR HERSELF. AND HERE YOU HAVE A CASE WHERE A NUMBER OF JUSTICES ON THE WISCONSIN SUPREME COURT HAD BENEFITED IN THEIR REELECTION OR ELECTION CAMPAIGNS FROM WISCONSIN CLUB FOR GROWTH AND OTHER SUPPOSEDLY INDEPENDENT GROUPS THAT WERE A PARTY TO THE LITIGATION. AND IF THE SUPREME COURT TAKES THE CASE AND IF THEY RULE IN FAVOR OF THE PROSECUTORS, THAT WOULD OPEN UP ANOTHER PROCEDURAL EXERCISE WHEN THE PROSECUTORS COULD SEEK TO HAVE JUSTICES RECUSE THEMSELVES.

FREDERICA FREYBERG:

AND SO THAT IS THE ISSUE, THAT IF THE U.S. SUPREME COURT TOOK THIS CASE, THEY WOULD BE HEARING IT ON?

KEN MAYER:

THAT’S CORRECT. IT WOULD BE ON THE ISSUE OF RECUSAL AND WHETHER THE FACT THAT WISCONSIN CLUB FOR GROWTH AND SOME OF THE OTHER GROUPS THAT WERE INVOLVED IN THIS JOHN DOE INVESTIGATION, WHETHER THEIR SUPPORT FOR THE JUSTICES WOULD MEAN THAT THOSE JUSTICES WOULD BE REQUIRED TO RECUSE THEMSELVES UNDER THE SUPREME COURT STANDARD.

FREDERICA FREYBERG:

WHAT DO EXPERTS BELIEVE ARE THE ODDS THAT THE SUPREME COURT WILL HEAR THIS? I MEAN, IS IT A BIG ENOUGH ISSUE FOR THEM TO LOOK AT?

KEN MAYER:

IT IS. IN PART BECAUSE ON THE COURT THINGS HAVE CHANGED. WITH THE DEATH OF JUSTICE SCALIA, WHAT HAS BEEN A CONSISTENT 5-4 MAJORITY IN FAVOR OF ROLLING BACK CAMPAIGN FINANCE LAWS, WE NOW HAVE A SPLIT COURT, WHERE FOUR JUSTICES HAVE CONSISTENTLY VOTED TO UPHOLD THOSE RESTRICTIONS, AND NOW A FOUR JUDGE, BASICALLY A TIE. THAT MEANS SOME OF THESE ISSUES MIGHT AGAIN BE IN PLAY, PARTICULARLY IF THE FIFTH JUSTICE, WHETHER IT’S MERRICK GARLAND OR A SUBSEQUENT JUSTICE, COULD CHANGE THE DYNAMICS OF THE COURT. AND I THINK ONE OF THE THINGS THAT THE JUSTICES WILL BE LOOKING AT — AND IT ONLY TAKES FOUR VOTES TO HEAR A CASE — IS WHETHER THESE REVELATIONS, WHICH THE COURT WOULD PRESUMABLY HAVE ACCESS TO, RAISES THE SPECTER THAT THERE ACTUALLY IS SOMETHING THAT THEY WANT TO REVISIT ABOUT THEIR JURISPRUDENCE, ABOUT THEIR FINDING OF LAW THAT INDEPENDENT EXPENDITURES CANNOT BE CORRUPTING.

FREDERICA FREYBERG:

ALL RIGHT. WE LEAVE IT THERE. KEN MAYER, THANKS VERY MUCH

KEN MAYER:

MY PLEASURE.