There seemed to be no doubt about it: The conduct that Wisconsin Senate President Mike Ellis (R-Neenah) was recently caught on tape discussing -- creating an outside group to attack his Democratic opponent -- is against the law.
The conservative group that secretly recorded this conversation said so. News outlets across the state said so. Even Ellis, who partly because of this incident decided not to seek re-election, said so.
"Shortly after the video was recorded, I was informed that the described scenario would be illegal, and the idea went no further," Ellis said in a statement.
But clarity on this topic is gone. A federal judge, in shutting down the John Doe probe into alleged illegal coordination between outside groups and Gov. Scott Walker's 2012 recall campaign, embraced a legal interpretation that would, it seems, allow the coordination Ellis proposed.
U.S. District Judge Rudolph Randa's May 6 ruling asserts that, so long as outside groups do not engage in "express advocacy" -- telling voters how to vote -- they may freely coordinate with candidates and campaigns without being subject to contribution limits.
"The plaintiffs have found a way to circumvent campaign finance laws, and that circumvention should not and cannot be condemned or restricted," Randa wrote. "Instead, it should be recognized as promoting political speech," the curtailment of which has historically led to "the Guillotine and the Gulag."
In some quarters, Randa's ruling is being hailed as a righteous rebuke to partisan efforts to suppress free speech. Conservative pundit George Will accused Wisconsin's John Doe prosecutors of "police-state arrogance" and "cynical manipulation of Wisconsin's campaign laws."
But Paul S. Ryan, senior counsel with the nonprofit Campaign Legal Center in Washington. D.C., says Randa's decision "flies in the face of well-established Supreme Court precedent," which has never limited the ban on campaign coordination to express advocacy.
For instance, in McConnell v. Federal Election Commission, decided in 2003, the high court held that electioneering communications that do not contain express advocacy can be treated as coordinated expenditures.
And in Wisconsin, a coordinated mailing on behalf of state Supreme Court Justice Jon Wilcox in 1997 was deemed to have run afoul of state law. Wilcox's campaign agreed to a $60,000 fine, $10,000 of which Wilcox paid personally.
Ellis, elsewhere a prominent proponent of campaign finance reform, was taped talking about forming a political action committee to have an associate attack his rival. "I'm raising the money, she will manufacture the crap," he said.
Scott Kelly, a spokesman for Ellis, now says what his boss proposed was, at the time, "legally a gray area." But he agrees Randa's subsequent ruling "would definitely make it not illegal."
Randa's ruling is being appealed, and could end up before the U.S. Supreme Court. For now, the probe remains halted, although his order that collected evidence be returned and copies destroyed is on hold.
Ryan says the judge's ruling, if sustained, might allow outside groups to pay for a candidate's campaign staff, rent and food bills -- "everything that does not include express advocacy." Others doubt the ruling could be taken this far.
In the wake of Randa's ruling have come renewed calls for Wisconsin to make certain election-related communications subject to disclosure, as have other states. The U.S. Supreme Court, in loosening limits on campaign contributions, has touted the virtue of transparency.
Even a federal appeals court, in a May 14 decision that declared past state efforts to regulate issue ads unconstitutional, acknowledged that government could regulate not just express advocacy but also its "functional equivalent."
Legislative leaders are now vowing to pass a new law governing this area. But what sort of law will it be? A bill (SB 654) introduced last session by GOP lawmakers would have defied advocates of transparency and expressly exempted issue ads from regulation. It failed -- due in part to opposition from Sen. Ellis.
Bill Lueders is the Money and Politics Project director at the Wisconsin Center for Investigative Journalism. The Center produces the project in partnership with MapLight.
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