Attorneys will argue Tuesday before federal appeals court. It's deciding whether prosecutors should resume or end their probe into Gov. Walker's 2012 recall race.
U.S. District Judge Rudolph Randa ordered a halt to the secret John Doe. He found that the coordination that took place between Walker’s campaign and third party interests was legal, because they did not run ads telling people to vote for or against anyone.
Professor Donald Downs, a political scientist UW Madison, says the appeals court must interpret the role the third parties played in the recall.
"If it was issue advocacy, then according to district court, the coordination law could not apply because there is a First Amendment right to engage in that kind of coordination for issue advocacy purposes. If however, it was express advocacy that was being coordinated, then that would not be protected by the First Amendment. So that's what the court will have to look at," Downs says.
Downs says the U.S. Supreme Court ruled in 2007, that the so-called bullet words, "vote for" or "vote against" differentiated express advocacy from issue advocacy. That case involved the group Wisconsin Right to Life.
"Wisconsin Right to Life (in ads during a campaign season) talked about the issue of abortion in general, and then they said, 'contact Russ Feingold to give him your views,' and the court held that that was not express advocacy because it was about an issue and it simply said, contact your Senator," Downs says.
Downs says, after reading the lower court opinion and knowing how the Supreme Court has ruled, he thinks there is 'a decent chance' that the appeals court will uphold Randa's finding, that the activities of third party players in Wisconsin's 2012 recall season amounted to issue advocacy. If so, the John Doe could end.
One of the independent groups, Wisconsin Club for Growth, wants the courts to find prosecutors guilty, publicly and privately, of violating the free speech rights of the third party groups, and of pursuing an investigation against them because of their conservative views. Downs does not expect prosecutors to face charges, no matter what the outcome of the appeals court decision.
"One issue brought up in the earlier decisions, was whether or not this was a frivolous claim made by the prosecution. I'm not sure it's a frivolous claim, even if it ends up that Walker wins in the end, I'm not sure that it's a claim that's frivolous, because I think First Amendment law is not entirely settled there," Downs says.
Downs believes the appeals court will issue a decision relatively soon because of the approaching gubernatorial election. On November 4, Republican Gov. Walker squares off against Democrat Mary Burke.
"If they're thinking about the impact on the election, it would probably make sense to decide now, because the cat's out of the bag," Downs says, referring to all the information that's been made public through the release of John Doe documents.