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Just how dodgy?

SCOTT WALKER’S brand of fiscal conservatism has made him a divisive figure in Wisconsin. Soon after entering office in 2011 the Republican governor riled voters with a plan to limit the collective bargaining rights of state workers (ie, teachers, firemen, police officers). This move sparked protests and a nasty recall election, but he emerged victorious in 2012, and his name is often mentioned among possible contenders for the 2016 Republican nomination. But in recent days his name has been bandied about for less savoury reasons: state prosecutors suspect him of flouting campaign-finance laws in the run up to the 2012 recall election.

On Thursday a federal appeals court released hundreds of pages of documents from a secret investigation into the governor. State prosecutors propose that Mr Walker was at the centre of a “scheme to violate campaign law by improperly co-ordinating campaign activities with outside groups”. No one has been charged, however, and a federal judge has halted the investigation in response to a lawsuit brought by the defendants. The fate of the case is now in the hands of an appellate panel.

At issue is whether Mr Walker’s staff directed the activities of a network of conservative groups headed by the Wisconsin Club for Growth, an independent organisation that spent millions on ads praising the governor and fellow state Republicans and attacking their Democratic rivals. Though campaign-finance law post-Citizens United allows independent groups to raise and spend unlimited amounts of money on campaigns, it is illegal for politicians to plan how this money is spent. Politicians are allowed to control only funds that have been donated expressly to their campaigns, as these are curbed by rules on contribution limits.

So what evidence do prosecutors have that Mr Walker’s office directly influenced the spending of the Wisconsin Club for Growth? Documents link the governor’s top political advisor, RJ Johnson, to the group (he once said “we own CFG”), and Mr Johnson’s business partner was a signatory on the Club’s bank account and signed the group’s checks during this period. Mr Walker also happened to praise Mr Johnson’s efforts in an e-mail to Karl Rove in May 2011: “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 running 9 Congressional markets in every market in the state (and Twin Cities.).”

But here the case gets thorny. First, the ads themselves were not in fact campaign ads, as they never officially endorse a candidate. Instead, the Wisconsin Club for Growth paid for “issue ads”, which are not bound by the same federal campaign-finance laws (even if they are plainly in support of a candidate). The prosecutors argue that issue ads are still dodgy, and that Wisconsin’s campaign-finance laws are particularly strict. But the defendants allege that the prosecutors went on a partisan fishing expedition in search of foul play, and that any effort to penalise their spending is an attack on free speech. (The head of the Club has also complained that the investigation has hurt the group’s fundraising and has hindered their participation in the latest election cycle.) The governor claims the investigation is politically motivated—which the prosecutors say is hogwash. A federal judge sided with the Club in May, halting the investigation. Now everyone is waiting to see what the federal appellate court decides.

The case is legally messy, and is expected to be tied up in both federal and state courts for a while. Not only is it not clear whether prosecutors have the evidence they need to charge anyone with a crime, it isn’t even clear whether prosecutors will be allowed to use the evidence they have for anything. (The public dump of documents last week came because the prosecutors asked for it and the Club didn’t object.) All of this is important for several reasons. First, the case has thrust Mr Walker into an unflattering spotlight a mere months before he faces re-election. He is expected to win, but the race is a little tight. Second—and more profoundly—the case could end up before the Supreme Court, as it raises real questions about what campaign spending qualifies as free speech. If the appellate court sides with the federal judge’s ruling, this case could pave the way for more unhindered coordination between politicians and “independent” groups, and more uncurbed spending on ads that clearly back candidates, even if they don’t come right out and say it.

Dig deeper:

Lexington profiles Scott Walker 

Why do American elections cost so much?

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