I have written this new jurisprudence essay at Slate. It begins:
I have no idea if Wisconsin Gov. Scott Walker is guilty of illegally coordinating his 2012 campaign against a recall with outside groups, as Wisconsin prosecutors have accused him of doing in documents just released by a federal appeals court. He denies it. Nor do I know if Walker is actually dumb enough to have sent this email, included in the released documents, to Republican strategist Karl Rove—an email that explains how one of Walker’s main deputies would be the point person coordinating activity between Walker’s campaign and a network of outside conservative and business organizations headed by the Wisconsin Club for Growth.
Walker hasn’t been charged, and a judge stopped the prosecutors from further investigating last month, a ruling that is now on appeal. That ruling should be reversed, because the main defense against the state prosecution is one that, if successful, could bring down the few remaining limits we have left on money in politics. It would allow virtually unbridled coordination between outside groups and candidates, giving money ever more influence over politicians and elections.
It concludes:
If Randa’s ruling stands on appeal, then the rules against coordination between a candidate and outside groups would go out the window in Wisconsin. That would be license for big donors to give unlimited sums to groups that will do candidates’ bidding. According to the Huffington Post, the Wisconsin Club for Growth pulled in $20 million during 2011 and 2012, much of it from business and industry groups, including the controversial Koch brothers. The club then doled out the money to other groups, with some of it, for example, ending up in the hands of Wisconsin Right to Life, which could then run issue ads about the recall targeted at its abortion-opponent constituency. It all made a Big Business effort, paid for with Big Business money, look appealingly grassroots.
So that’s the future if Judge Randa’s ruling stands—big money being raised and channeled, in cooperation with a candidate to the benefit of that candidate, obliterating the line between independent and coordinated spending. There’s a good chance the 7th Circuit will disagree with Judge Randa and hold the line against this. But here’s a more alarming scenario: The case winds up at the Supreme Court. The conservative majority of justices has struck down campaign finance limit after limit. Who knows what they would do with the coordination rules? The only way to win on campaign finance before the Roberts court is not to play.