At a time of intense struggle over civil enforcement of campaign finance laws, Wisconsin’s  “John Doe” case turns the discussion to the invocation of criminal law in a way not seen since the investigations of the 1996 presidential election campaign.

The 2014 Wisconsin and 1996 presidential election cases are similar, in fact.  Each involves an attack on the coordinated use of soft money, allegedly to circumvent campaign finance restrictions.  In 1996, the hub of the coordinated activity was mainly, but not only, the political party: now, fitting for the times, the central players are the outside groups who have come to dominate soft money resources.

District Court Judge Randa is aggressive in approach, free-wheeling in his rhetorical references to liberty gone the way of the Gulag and the Guillotine, and provocative in his praise for “circumventing” campaign finance laws if necessary to engage in issue advocacy. But the issue before him is a serious one, today as in 1996: when constitutional limits are much in dispute and the boundary line between express and issue advocacy is poorly marked, what effects, for better or worse, do criminal law enforcement strategies have?

After the 1996 election, the Justice Department faced the question of whether to seek the appointment of an Independent Counsel. Any criminal investigation into coordinated soft money spending on issue ads would have affected senior party officials, White House aides and, most likely, President Clinton.  Republican critics noted the account of one of the President’s senior political advisers, Dick Morris, that the issue advertising was “the key to Clinton’s victory,” and that “every line of every ad came under his informed, critical, and often meddlesome gaze.” Paul A. Gigot, A Stolen Election, The Wall Street Journal (updated Oct. 17, 1997 12:01 AM), http://online.wsj.com/news/articles/SB877041054543750500#printMode

The Department declined to find a basis for the appointment of an IC, but an internal analysis and recommendation to the contrary, by Charles La Bella, came to light. It offered a preview of the theories of criminal liability that an IC might have pursued.  In a report to the Attorney General and the director of the FBI, La Bella dismissed any need to determine the level of misconduct required to find  a criminal violation of the federal campaign finance law.  “Mere civil violations” would be sufficient to support a claim that coordinated issue advertising, paid for with soft money, constituted a conspiracy to defraud the United States in violation of 18 U.S.C § 371.  La Bella took his argument even a step farther, suggesting that the claim would not have to rest on a violation of any statute: the conspiracy could be established by showing an obstruction of a lawful government function, presumably the administration of the presidential public financing statute.  The Charles La Bella Memorandum: Hearing Before the Subcomm. on Admin. Oversight & the Courts of the S. Comm. on the Judiciary, 106th Cong. 81-82 (2000) (interim report for Janet Reno, Attorney General, and Louis J. Freeh, Director, Federal Bureau of Investigation).

In considering how many ICs did their jobs—with zeal and over a period of years—it is not difficult to imagine where this line of thinking might have led. It would have been hard for Democrats to stomach the avalanche of subpoenas and interviews, and the burdens of highly priced legal representation, all because the party had paid for ads attacking the policies favored by Newt Gingrich and Bob Dole.

The Republicans then had an appetite for criminal enforcement—for any enforcement that vindicated their complaints about how the President managed to win a second term. Their arguments did not win them the appointment of an IC, nor force the President and his aides on the coordination  issue before a grand jury. But Republicans in Congress did set into motion the legislative activity leading to the enactment of McCain-Feingold, a law that their party reviles.

This episode suggests that, even if they don’t actually demand the Guillotine, each party and their faithful should still consider carefully what they are wishing for when they call for a Grand Jury.