In college, I had a buddy whose entire worldview was circumscribed by whatever happened to be in front of his face at that very moment. We would drive down the street and he’d read off the signs as we passed by them in the car. Instead of engaging in deep philosophical conversations about Camus or the Green Bay Packers, he’d rattle off phrases such as “Oooh, Arby’s,” or “Same-day Martinizing!” (We often joked that he always thought whatever direction he was facing was north.)
A recent myopic editorial by the New York Times, however, makes my friend look like Ben Franklin for his scope of knowledge. In opining about a recent document dump stemming from a previously secret “John Doe” investigation into Wisconsin governor Scott Walker and his allies, the Times peddles a wildly misleading argument completely devoid of context.
Last week, the Guardian, a British left-wing paper, released nearly 1,500 pages from the investigation into whether Walker “illegally” coordinated with third-party groups such as the Club for Growth during his 2012 recall election campaign. The Times asserts that these groups “are not allowed to work with a campaign to urge voters to vote for a candidate, because that would essentially allow donors to funnel money toward these groups to get around contribution limits that apply to campaign committees.”
Yet this assertion is flatly false. A Wisconsin state judge, two Milwaukee-based federal judges, the Wisconsin Supreme Court, and the federal Seventh Circuit Court of Appeals in Chicago have all ruled that relevant portions of Wisconsin state law are unconstitutional, which is why not a single person investigated in this aspect of the probe has ever been charged with anything.
The argument basically comes down to whether state laws apply to “issue” advocacy (ads that don’t expressly urge voting for or against a specific candidate) in the same way they apply to “express” advocacy (ads that explicitly direct the viewer to “vote for” or “vote against” a candidate).
Virtually every court that has considered the Doe probe has come to the same conclusion: The state ban on coordination between candidates and third-party groups applies only to express advocacy. Issue advocacy, on the other hand, is outside the framework of the state’s election law: The state cannot regulate “issue” television ads any more than it can regulate those insufferable “Peyton on Sunday Morning” spots. Thus, candidates are free to communicate in any way they want with groups that produce issue ads.
But these facts are too much for the Times editors, who focus their attention on the Guardian’s lengthy article of last week — which, incidentally, says that Walker signed a law inoculating paint manufacturers against nuisance lead-paint lawsuits only after a lead manufacturer donated $750,000 to the Club for Growth (a pro-Walker group) during Walker’s hotly contested recall election.
Yet the Guardian article conveniently fails to mention that for nearly a decade, Republicans in the Wisconsin legislature had been pushing a bill to grant “retroactive immunity” to paint companies. Walker signed this bill as soon as Republicans took full control of state government, in 2011. Nor does the Guardian choose to mention that over that decade, left-wing third-party groups had received millions from trial lawyers intent on blocking the proposed bill.
Even more embarrassing are the Times’ comments on the Wisconsin Supreme Court — from reading the editorial, you’d think the Wisconsin Supreme Court was the only court that reviewed the Doe case. The Times editors also make the spurious charge that justices were influenced by third-party spending, saying: “At least two of the court’s justices who voted to end the [Doe] inquiry also benefited from millions of dollars spent by some of the same conservative groups backing Mr. Walker, including the Wisconsin Club for Growth, in their own re-election campaigns in recent years.” The Times adds, “Republican operatives knew that losing the court’s conservative majority would spell the end of Mr. Walker’s right-wing, anti-union agenda.”
But, as noted, the case went through several different courts, each of which ruled in Walker’s favor. Is the Seventh Circuit Court of Appeals in Chicago under the thumb of the Wisconsin Club for Growth? Is U.S. District Judge Charles Clevert a clandestine Tea Partier, despite being a Clinton appointee to the bench?
It is particularly risible that Times editors would cite the battle over Walker’s union reforms in making their case that conservative justices should recuse themselves. In 2011, public-sector unions, knowing that Walker’s new union-reform law would one day make it to the high court, spent millions upon millions to defeat the conservative candidate in a Wisconsin Supreme Court race. (The conservative candidate, David Prosser, narrowly won, and the union-reform law was ultimately upheld.)
But the Times is wholly unconcerned that the liberal justices who benefited from union money ruled against Walker’s new law. Apparently, it’s only conservatives who are swayed by third-party spending. Moreover, the Club for Growth spends money against liberal justices, as well — wouldn’t left-wing judges be just as biased against third parties that had opposed them during their campaigns? (By this logic, shouldn’t the whole court have to recuse itself?)
The Times is wholly unconcerned that the liberal justices who benefited from union money in their reelection campaigns ruled against Walker’s new union-reform law.
Of course, no misleading editorial about campaign finance can be complete without a negative reference to Citizens United, the U.S. Supreme Court case that allowed corporations and unions to exercise their First Amendment right to free political speech during campaigns. But Citizens United had literally nothing to do with the recall election in Wisconsin; at issue in the Walker recall was state campaign-finance law, not the federal framework as erected by the frequently overturned McCain-Feingold law passed in the early 2000s.
The Times quotes Justice Anthony Kennedy, who, in his dissent in Citizens United, wrote: “By definition, an independent expenditure is political speech presented to the electorate that is not coordinated with a candidate.” But, again, Kennedy was discussing the federal law, not the state law in Wisconsin, which was the focus of the John Doe investigation. Two different governments, two different laws; this is elementary-school civics stuff. Yet, like bacon on a salad, the Times must apply Citizens United to add flavor to any campaign-finance argument.
Christopher Hitchens once wrote, “It is a frequent vice of radical polemic to assert, and even to believe, that once you have found the lowest motive for an antagonist, you have identified the correct one.” In this case, the New York Times started with a motive and worked backwards, rather than letting the facts lead them to an honest conclusion.