Associated Press
CHICAGO - Wisconsin prosecutors on Tuesday tried to persuade a federal appeals court to let them to resume their investigation of Gov. Scott Walker's recall election campaign, in a case that touches on broader, hotly debated issues about just what constitutes constitutionally-protected political activity.
The arguments before the 7th U.S. Circuit Court of Appeals in Chicago came two months before Walker - a Republican seen as a potential 2016 candidate for president - faces a closely contested re-election against Democrat Mary Burke.
Walker made a national name for himself when he took on public sector unions in 2011 with his measure that effectively ended collective bargaining for most public workers. That fight led to the 2012 vote to recall Walker, which he won.
The recall battle ultimately led to the legal dispute now in the Chicago court.
No one has been charged in the investigation and prosecutors have said Walker isn't a target. Walker and Republicans have dismissed the investigation as a partisan witch hunt against conservative groups, while Democrats say it has revealed serious questions about possible illegal activity by Walker and his backers.
Much of Tuesday's arguments focused on the intricacies of Wisconsin's criminal system. The three judges didn't give a clear sense of which side they might favor.
But Judges Frank Easterbrook, a Republican appointee, and Diane Wood, a Democratic appointee, both sounded skeptical about whether a federal court was justified in telling a state how to conduct criminal inquiries.
Easterbrook said precedent when it came to federal judges dictating to state is, "Be modest. Be careful."
Wood echoed that: "I don't understand why a federal court - at this micro-level - should be brought in."
Prosecutors, who opened the investigation in 2012, want the appeals court to reverse a preliminary decision halting the investigation in May and dismiss the federal civil rights lawsuit filed by the conservative Wisconsin Club for Growth and its director, Eric O'Keefe.
A lawyer for the conservative groups several times on Tuesday broached the argument that prosecutors were trampling on his clients' rights.
"The issue is our clients' right ... to be free of retaliation (for expressing) his First Amendment rights," said attorney Mark DeLaquil.
Easterbrook bristled at that: "You are back to a high level of generality."
On the surface, the composition of the three-judge panel hearing the case, with two Republican and one Democratic appointee - would appear to favor the conservatives. But judges are fiercely independent and their decisions frequently do not line up with the party of the president who appointed them.
It isn't clear whether the court will rule before the Nov. 4 election. Even if it allows the investigation to resume, a state judge who also blocked the probe in January could keep it on hold.
The case centers on the type of political activity being done by the conservative groups during the recall campaign and whether that work required them to follow state laws that bar coordination with candidates, requires disclosure of political donations and places limits on what can be collected.
In a recent filing with the 7th Circuit, the conservative groups accused prosecutors of targeting them for expressing political views protected by the First Amendment.
In a filing of their own, prosecutors decried the lower-court ruling halting their investigation, saying it gave too much weight to the interests of well-funded, politically minded groups and not enough to the public interest.
Under Wisconsin law, third-party political groups are allowed to work together on campaign activity, but are barred from coordinating that work with actual candidates.
Prosecutors have said they are looking into allegations of illegal campaign activity involving Walker, the Wisconsin Club for Growth, the state chamber of commerce and other conservative groups during the 2011 and 2012 recalls.
Special prosecutor Francis Schmitz described what he called a "criminal scheme" by Walker to evade campaign laws. A Schmitz' attorney subsequently said Walker wasn't a target and that no determination had been made about charges.
The Wisconsin Club for Growth argues that coordinating with candidates on issue advocacy - communications that don't expressly ask a voter to elect or defeat a candidate - is legal.
CHICAGO - Wisconsin prosecutors on Tuesday tried to persuade a federal appeals court to let them to resume their investigation of Gov. Scott Walker's recall election campaign, in a case that touches on broader, hotly debated issues about just what constitutes constitutionally-protected political activity.
The arguments before the 7th U.S. Circuit Court of Appeals in Chicago came two months before Walker - a Republican seen as a potential 2016 candidate for president - faces a closely contested re-election against Democrat Mary Burke.
Walker made a national name for himself when he took on public sector unions in 2011 with his measure that effectively ended collective bargaining for most public workers. That fight led to the 2012 vote to recall Walker, which he won.
The recall battle ultimately led to the legal dispute now in the Chicago court.
No one has been charged in the investigation and prosecutors have said Walker isn't a target. Walker and Republicans have dismissed the investigation as a partisan witch hunt against conservative groups, while Democrats say it has revealed serious questions about possible illegal activity by Walker and his backers.
Much of Tuesday's arguments focused on the intricacies of Wisconsin's criminal system. The three judges didn't give a clear sense of which side they might favor.
But Judges Frank Easterbrook, a Republican appointee, and Diane Wood, a Democratic appointee, both sounded skeptical about whether a federal court was justified in telling a state how to conduct criminal inquiries.
Easterbrook said precedent when it came to federal judges dictating to state is, "Be modest. Be careful."
Wood echoed that: "I don't understand why a federal court - at this micro-level - should be brought in."
Prosecutors, who opened the investigation in 2012, want the appeals court to reverse a preliminary decision halting the investigation in May and dismiss the federal civil rights lawsuit filed by the conservative Wisconsin Club for Growth and its director, Eric O'Keefe.
A lawyer for the conservative groups several times on Tuesday broached the argument that prosecutors were trampling on his clients' rights.
"The issue is our clients' right ... to be free of retaliation (for expressing) his First Amendment rights," said attorney Mark DeLaquil.
Easterbrook bristled at that: "You are back to a high level of generality."
On the surface, the composition of the three-judge panel hearing the case, with two Republican and one Democratic appointee - would appear to favor the conservatives. But judges are fiercely independent and their decisions frequently do not line up with the party of the president who appointed them.
It isn't clear whether the court will rule before the Nov. 4 election. Even if it allows the investigation to resume, a state judge who also blocked the probe in January could keep it on hold.
The case centers on the type of political activity being done by the conservative groups during the recall campaign and whether that work required them to follow state laws that bar coordination with candidates, requires disclosure of political donations and places limits on what can be collected.
In a recent filing with the 7th Circuit, the conservative groups accused prosecutors of targeting them for expressing political views protected by the First Amendment.
In a filing of their own, prosecutors decried the lower-court ruling halting their investigation, saying it gave too much weight to the interests of well-funded, politically minded groups and not enough to the public interest.
Under Wisconsin law, third-party political groups are allowed to work together on campaign activity, but are barred from coordinating that work with actual candidates.
Prosecutors have said they are looking into allegations of illegal campaign activity involving Walker, the Wisconsin Club for Growth, the state chamber of commerce and other conservative groups during the 2011 and 2012 recalls.
Special prosecutor Francis Schmitz described what he called a "criminal scheme" by Walker to evade campaign laws. A Schmitz' attorney subsequently said Walker wasn't a target and that no determination had been made about charges.
The Wisconsin Club for Growth argues that coordinating with candidates on issue advocacy - communications that don't expressly ask a voter to elect or defeat a candidate - is legal.