Walker ‘smoking gun’ story has tiny glaring flaw

Jon Cassidy
Aug 28, 2014 2:30 AM
Walker ‘smoking gun’ story has tiny glaring flaw
Part 111 of 111 in the series Wisconsin's Secret War
File photo

UNPHASED: The Journal Sentinel took a big swing at Walker on the front page Tuesday and wound up hitting itself.

By Jon Cassidy | Watchdog.org

It’s sometimes said journalism is the business of making mistakes in public.

The Milwaukee Journal Sentinel knows what that’s like, as it made a whopper of a mistake on its front page Tuesday. In an above-the-fold story by three of its top reporters, the paper reported allegations that Gov. Scott Walker’s “campaign crossed a bright legal line by coordinating with independent conservative groups that expressly called for the election of specific candidates in the recall elections for governor and state Senate in 2011 and 2012.”

The Journal Sentinel’s description of the law is simply wrong, and if its reporters had checked the dates of the emails they were reporting on, they’d have noticed a little problem: they date from seven months before the Walker recall campaign existed. Whatever the merits of the legal theories at issue, the reporters ought to admit there’d be certain difficulties in coordinating with non-entities.

The first and lesser error regards that “bright legal line,” and the idea it would preclude Walker from helping candidates for state Senate. The reporters cite no experts or state law in support of their contention, because there are none. The phrase they’re using — expressly — comes from a landmark 1976 Supreme Court case called Buckley v. Valeo, which established “issue advocacy” as constitutionally protected speech and “express advocacy” of a candidate as something that could be regulated wherever there was a possibility of quid pro quo corruption.

Benjamin Barr, a national elections law expert, said “the best sense of a judicial standard about coordination (and this material is sparse) comes from Buckley and Colorado Republican II,” the ruling that banned soft money and held that contribution limits could be applied to independent groups “when they indirectly contribute by making expenditures that they coordinate with the candidate.”

“That sort of coordination means the donor has a direct interaction with the candidate/campaign and provides something of value,” Barr said. The coordination here is specific: it only concerns ad buys, mailers, and other communications pre-arranged with or suggested by the candidate or his agents. The Federal Election Commission, which isn’t the authority here but must abide the same constitutional guidelines, describes this as “… the communication is created, produced or distributed at the request or suggestion of the candidate” or his agents. The candidates, in this case, are the state senators, not Walker, who is free to campaign for others.

The Journal Sentinel purports “emails show Walker’s campaign regularly discussed campaign strategy and polling with the Republican Governors Association.” Unless those emails show Walker’s campaign initiating “express advocacy” ad buys for himself, there’s nothing to report here. The paper doesn’t actually quote the emails.

The Journal Sentinel has chosen not to bore its readers with the details of campaign finance law — and it’s admittedly boring stuff. As columnist Dan Bice put it, in a tautology worthy of the rapper MIMS, the “reason we don’t go into great detail on express advocacy is that you can’t discuss it without going into great detail.”

But the paper’s coverage, which has largely ignored the logic of two emphatic court rulings against the prosecutors, provides little indication its reporters and editors understand the law. How else could Tuesday’s story be explained?

The paper reports R.J. Johnson, a consultant at times for both Walker and the Wisconsin Club for Growth, “sought and received campaign strategy from an unnamed representative of the Republican State Leadership Committee.

“‘Need to know what you are up (to) and the content of your spot. We are drafting radio to complement. Also need to know if you plan to play any further in WI beyond Holperin,’ Johnson wrote.

“The plans were then shared in July 2011…”

The recall campaign against Walker didn’t even get started until November 2011, with signature gathering, and wasn’t certified until the following March. Under Wisconsin law, confirmed at the time by the Government Accountability Board, contribution limits don’t apply until the signatures have been certified. If the limits don’t apply to direct contributions, they surely don’t apply to allegedly coordinated indirect contributions to campaigns not yet in existence.

Just as important, the messaging being discussed in that email has nothing to do with Walker’s eventual campaign. Like another email the Journal Sentinel ripped from context, where a Wisconsin Club for Growth employee writes that Walker “wants all the issue advocacy efforts run thru one group to ensure correct messaging,” the subject is the issues at play in the recall campaign against eight Republican state senators.

Perhaps “ripped from context” isn’t the fairest description of what the reporters did, because the actual severing was done by the prosecutors. The reporters haven’t seen all the evidence, and they’re jumping on the tidbits presented in materials that were supposed to remain sealed. U.S. District Court Judge Rudolph T. Randa has seen all the evidence, and he wrote that Wisconsin Club for Growth founder Eric “O‘Keefe and the Club maintain that they did not coordinate any aspect of their communications with Governor Walker, Friends of Scott Walker, or any other candidate or campaign, and the record seems to validate that assertion.”

Now, the reporters aren’t obligated to come to the same conclusion if they find something substantial, but if they keep rushing to report the “proof” of what they’ve suspected all along, they’re likely to keep embarrassing themselves like they did this week.

The Journal Sentinel reporters may think “issue ads” are often a thin veil for campaign ads, and that’s a reasonable enough personal opinion. But it’s not the law. And if ever there was a case in which the issues were really the issue, in which the candidates mattered only in relation to how they voted on a single issue, it was the fight over public-sector collective bargaining in Wisconsin. That’s what the left cared about. That’s what the right cared about. And that’s why so many people wanted to buy ads in the first place, not to get in good with the distinguished gentleman from Beetown.

At some point, the Journal Sentinel is going to have to realize the smoking gun it’s been waiting for all these years may not exist, and that the prosecutors have proven only how conscientiously the state’s conservatives have worked to stay on the right side of an often fuzzy “bright legal line.”

Contact Jon Cassidy at jon@watchdog.org or @jpcassidy000.