In the uproarious wrangling over the John Doe investigation involving Scott Walker, his campaign, and supposedly independent campaign and issues groups, a bigger and more fundamental issue has lurked in the shadows. And that's just fine with conservative interests, who these days increasingly depend on fear, uncertainty and doubt to advance their interests. Oh, and misdirection, too.
The conservative movement's legal and PR effort to end the Doe probe is part of a bigger, longer-term effort to cloak their own activities while they continue exposing yours, mine and everyone else's behavior to harsher light. In an era when their ideology is falling farther from favor, conservatives operate best in obscurity, as for instance when the Walker administration hides the governor's schedule from reporters, conceals palsy-walsy tax subsidy deals with state businesses that outsource jobs, and delays or re-jiggers public release of jobs data that would otherwise make Walker look bad. The rest of us enjoy no such cloaking.
When you sign a Walker recall petition, your name appears in a black list on the World Wide Web, courtesy of conservative groups who structure the data in ways that impune your reputation. If you give 25 hard-earned bucks to a Democratic candidate, your contribution remains an open book. Meanwhile, conservatives coordinate their campaigns in evidently illegal and/or anonymous ways, laundering hundreds of milliions of dollars from wealthy supporters who have few if any effective contribution limits. Mainstream conservatives, more than any other organized political entity, get to hide who among them is paying whom. The rest of us are left mostly to guess what they're up to and the deals they're making behind closed doors. Conservatives hope that sooner or later we'll stop looking altogether.
Working the referees -- both public opinion and the courts -- conservatives have gamed the system since the Buckley vs. Valeo case in 1976 to remove more and more legal limits on how much they and their rich benefactors can spend to influence elections. They not only mostly have accomplished that, they also have succeeded in making much of that political financing a legal secret.
Nevertheless, in their view, secrecy should only be allowable where they decide. For instance, they think the John Doe probe, whose proceedings are kept behind closed doors to protect the innocent pending possible charges, somehow violates their privacy -- even when the only reason we know so many details about the case is that conservative targets of the inquiry were the ones who leaked information about it, theoretically to their own benefit.
In their Doe legal fight and probable later contests, those same conservative interests are working hard to take their game up a notch. This time, they not only want to keep their virtually endless political spending and no-holds campaign coordination secret from the public. Now they aim to further modify the laws of the land, effectively ensuring their activities are also kept secret not just from the public, but from election regulators and the nation's justice system.
One way to get away with a crime is to use the courts or legislatures to decriminalize the activity. But where that might be politically embarrassing or hard to arrange, there's now in the Doe case a new tactic: using the courts to prevent officers of the law from even looking into suspicious, possibly illegal activity.
When police and prosecutors investigate potential crimes, they often follow the money. Tracking illicit payments greatly helped investigators finger President Richard Nixon in the Watergate probes. Tracing money has been the impetus, too, behind the John Doe probe here in Wisconsin looking into campaign irregularities. The nonpartisan judges at the Wisconsin Government Accountability Board and bipartisan prosecutors in the Doe probe agreed to proceed, based on sufficient evidence of illegal financial and other coordination between the Walker campaign and supposedly independent issue groups.
Plaintiffs in state and federal lawsuits trying to halt the probe claim their free-speech and privacy rights are violated by the mere existence of the investigation, which they would like to stop in its tracks before it can even finish its inquiry, much less issue criminal charges. Conservative political activities, you see, should not be subject to investigation, because, as these groups see it, what they're doing is, to borrow a Walker adverb, "perfectly" legal. Well, that ends that!
Following the same logic, if police decided to investigate you in connection with bank fraud, all you'd have to do is file a civil suit claiming your free-speech and privacy rights were being violated because your activities were perfectly legal. Protecting your rights thus would rely on getting a court to ban police from exercising their investigatory powers based on ... your rights! That would result in sheer tautology trumping the broad canvas of due process. I'm innocent! You can't prosecute me, because that would take away my right to proclaim my innocence!
So, in the conservative view, no need to waste the machinery of the justice system up to and perhaps including a criminal trial proving innocence or guilt. You would simply assert your innocence up front and get a friendly court to declare that other courts should never have a chance to hear the actual evidence. No police organization or prosecutor would be able to have you arrested and charged, since their investigation would be blocked before they could even justify their case. After all, allowing the justice system to look into your largely secret activities would be just plain unconstitutional! A witch hunt, even! And yet, in our imaginary example, the money is missing and everything points to you robbing that bank.
Winning their case against the Doe probe would, for the conservative plaintiffs, amount to a figurative act of terrorism. It would amount to setting off a roadside bomb as the wheels of justice rolled past. It would be like sweeping all the chess pieces off the board when they noticed they might be losing the contest, and afterward declaring victory. Strong words, but in these days of government shutdowns and foreign invasions based on imaginary pretexts, going to extremes is not outside the conservative playbook.
In real life, of course, you and I do not have the resources to bully the legal system into leaving us alone. You might, for example, be one of those many homebuyers who took out a defective sub-prime loan from an unscrupulous lender whose officers were padding their personal bank accounts with fat bonuses for running the mortgage industry and the world economy into almost complete ruin. All those lending officers have kept their fat bonuses and evaded punishment in the courts. Meanwhile, you may have lost your house, your job, and your reputation. You're too small to win, while those rotten lenders are too big to fail. They had the means to rig the system to their own benefit through political lobbying that led to deregulation and the financial house of cards, and that same system protected them against prosecution. Some democracy.Just as the mortgage crisis triggered the Great Recession, the conservative movement has engineered dysfunctional government for its own political and economic benefit. But government isn't yet, in the view of too many influential conservatives, dysfunctional enough. They want to make sure they have even greater discretion to engage in creative destruction, and for that they need to gain more elective power. And that means rejiggering all our campaign and election laws some more, to further benefit themselves and their backers.
And so we have the ironic Doe lawsuits. Conservative targets of the investigation think they have a better chance of going free if they stop the investigation before it can find out the whole truth. So they've made themselves into plaintiffs in a set of civil lawsuits intended to hide or destroy evidence that they obviously believe might make them into criminal defendents. In other words, they've recast themselves from perpetrators into victims.
But it's more than that. Why, asked judges on the federal appeals court hearing the case yesterday, did those conservative plaintiffs even bring this matter to their attention, when it's an issue that involves Wisconsin state law that ideally should be resolved in state courts? The truth is that conservatives these days aren't merely interested in this case as a particular matter. They want to turn it into a test case that will reach all the way up the U.S. Supreme Court, where, if recent past decisions are any measure, the conservative majority on that court might further strip states and the federal government if their remaining authority to oversee campaign finance laws. And that would make American electioneering even less transparent.
Conservatives have figured out the only way they can continue to win elections and hold power is if they cheat, disinform and obfuscate -- that, and engineer changes in every major branch of government so that they can safely and quietly strip the machinery of democracy of its remaining gears. The federal judiciary may not accommodate them in the Doe matter, but the state courts might. Whatever comes of that, that there surely will be another test-case opportunity coming along, sooner or later.
So, the Doe dust-up really is the latest salvo in a high-power campaign to blow away our democratic republic, making it even more of an oligarchy than it's already become. In that great battle, Scott Walker -- bad as he is -- is only one foot soldier who increasingly is just a disposable tool of much bigger, longer-term interests. The bad information that has come out of the Doe so far can be laid squarely at the feet of those third-party conservative groups that have bigger aims than merely electing one tea party Republican to a governorship or presidency.
