Battle Over Scott Walker Recall|Campaign Funding in 7th Circuit

CHICAGO (CN) - In oral arguments Tuesday, judges on the 7th Circuit doubted that Wisconsin prosecutors had free rein to investigate the financing of Governor Scott Walker's recall election campaign - but didn't want to tell prosecutors how to do their job, either.

Citing the "tremendous flux" in political finance law, the 7th Circuit heard oral arguments in a lawsuit against Wisconsin prosecutors who conducted a secret investigation of Walker's campaign and its supporters, to determine if they had coordinated expenditures in violation of campaign finance laws during the 2012 recall election.

The civil rights suit was filed by the Wisconsin Club for Growth, one of the groups investigated, and its founder, Eric O'Keefe, a self-described political activist with a history of fighting for Libertarian causes. The investigation included armed raids on homes to collect evidence.

U.S. District Judge Rudolph Randa of Wisconsin ruled in June that "the plaintiffs have been shut out of the political process merely by association with conservative politicians. This cannot square with the First Amendment and what it was meant to protect."

Based on this, Randa preliminarily enjoined the investigation.

O'Keefe's appellate brief did not mince words: "Defendants did not adopt this indefensible legal position out of some misplaced zeal to enforce Wisconsin campaign-finance law. The facts show that it was a pretext, contrived to support the latest phase of a years-long crusade against Governor Scott Walker, his associates, and now his philosophical allies."

But defense attorney Samuel Leib insisted that the prosecutors acted solely for the public interest and "had no reason to do any favors."

His colleague Joseph Russell added that "with coordinated expenditures," as opposed to individual ones, "you have to apply a heightened standard of review to prevent quid pro quo corruption."

"You're certainly not responding to the district court," Judge Frank Easterbrook said. "It said no, the First Amendment does not allow the prohibition of coordinated expenditures."

The defense also argued that the courts should stay out of the state's policing its own campaign finance situation, and thus claimed prosecutorial immunity - an argument that Judge Randa called "the height of frivolousness."

Wisconsin used a John Doe proceeding to investigate the plaintiffs.

The defense claimed that the "quality of judicial oversight in John Doe proceedings exceeds that of a grand jury proceeding" and that "it was essentially a given that there would be absolute immunity."

But Judge William Bauer reminded the defense that prosecutors can be held liable for investigative conduct.

The plaintiffs' immunity arguments did not fare much better.

"We think there's no qualified immunity," attorney Mark DeLaquil argued. "The right at issue is our clients' right to be free from investigation for exercising their clearly established First Amendment rights."

"But that's too broad," Chief Judge Diane Wood said. Pointing out Citizens United , she said that "this is an area of tremendous flux. What's clearly established here?"

"It was motivated by retaliation for the exercise of First Amendment rights," DeLaquil began.

Easterbrook cut him off: "You're just going back to a high level of generality."

He moved on: "All the plaintiffs have to do is convince the Wisconsin state trial judge to end it."

"But it wouldn't end the investigation," DeLaquil replied, noting that his clients sought damages.

"You can't stop prosecutors from reading the newspapers or asking friends!" Easterbrook said with a start.

Wood elaborated: "I'm frankly troubled by the idea that every time someone's frustrated with the state court, they're gonna run across the street to federal court."

Easterbrook seemed to find the defense's approach lacking, as well.

After Lee said he would "urge the court to vacate the district court ruling entirely," the judge turned up his palms, shrugged and shook his head incredulously.

"What are you asking for, concretely?" he asked forcefully. "We do not vacate opinions; we review judgments!"

All three judges seemed unhappy with the size of the record.

"One document began with 'a speck of cosmic dust,' and I'm thinking, do we really have to go back to the Big Bang?" Wood said.

"Eh, the long reading saved me from the Bears game," Bauer mumbled.

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