For months, supporters of Wisconsin Governor Scott Walker have insisted the John Doe criminal probe into his 2012 campaign is "baseless," because the alleged coordination under investigation did not involve ads that expressly told viewers to elect Walker or vote against his opponent. As long as an ad doesn't include such express advocacy, Walker and his allies have claimed [3], it is beyond the reach of Wisconsin campaign finance law.

The Wisconsin Republican Party has just taken the opposite position.

On July 22, the Party filed a complaint [4] with the Wisconsin Government Accountability Board alleging that a full-page ad from Trek Bicycle Company defending itself against attacks by Walker should be considered an illegal contribution to the campaign of Walker's opponent, Mary Burke. Notably, the ad did not include express advocacy.

In other words, unless the Wisconsin GOP knowingly filed a frivolous complaint -- which could subject it to penalties under Wisconsin law [5] -- the Republican Party appears to have acknowledged that the John Doe investigation has legal merit.

If Wisconsin's campaign finance law reaches advertisements that don't expressly call for the election or defeat of a candidate, as alleged in its complaint, the Wisconsin Republican Party seemingly must agree that the criminal probe into Walker's campaign should move forward.

Trek Ad Was Response to Walker Attack

The Trek ad [6], which ran in Sunday's Milwaukee Journal Sentinel, came in the form of an open letter from Trek's president (and Mary Burke's brother) John Burke. Burke said he was defending the company against Walker's TV spots attacking Mary Burke's time at the company and suggesting she shipped jobs overseas. Burke was previously an executive, and is a major shareholder, at the Wisconsin-based Trek, which was founded by her father.

"Over the past few months, much has been said about Trek. Gov. Walker's campaign recently ran an inaccurate political ad about Trek. This compels me to set the record straight," John Burke wrote in the ad, noting that Trek employs 1,000 people in the state, has a $52 million payroll in Wisconsin, and has donated millions of dollars to local charities.

Walker had recently boosted Trek as a Wisconsin success story, and previously declared that outsourcing should be off-limits as a campaign issue. In 2012, Walker criticized the Obama campaign [7] for its attacks on Mitt Romney on the issue of outsourcing, accusing the president of "desperately trying to have it about anything other than his record." A Wall Street Journal opinion writer recently criticized Walker [8] for playing the "Benedict Arnold CEO card" in his ads.

According to the Republican Party's complaint, Trek's newspaper ad defending itself amounted to an illegal contribution to Burke's campaign, despite not telling readers how to vote.

"They are undermining their own arguments and own defense in the John Doe case," said Jay Heck, Executive Director of Common Cause Wisconsin.

No Evidence of Coordination, in Contrast with Walker Criminal Probe

Even if the Trek ad were considered a political expenditure -- rather than a business owner trying to defend his company's reputation -- nothing is stopping Trek from running it independently of the Burke campaign. The U.S. Supreme Court in Citizens United struck down laws barring corporations from making independent political expenditures.

"The only way the ad is possibly problematic is if there is coordination" between the campaign and Trek about the ad, Heck said.

Ads coordinated with a candidate can be regarded as in-kind contributions to the campaign, regardless of whether they expressly tell viewers how to vote. The existence of coordination is an indication that an ad is of value to a campaign, and therefore should be treated as an in-kind campaign contribution, subject to contribution limits and disclosure requirements.

This legal theory -- which has now been endorsed by the Wisconsin Republican Party -- is the basis of the John Doe criminal probe. Prosecutors allege that the Walker campaign was at the center of a "criminal scheme" to illegally coordinate with Wisconsin Club for Growth, Wisconsin Manufacturers & Commerce, and other independent groups on millions of dollars of ads during the recall elections. What made the alleged conduct “criminal” is the Walker campaign and others misleading Wisconsin voters by knowingly filing campaign finance reports that omitted millions of dollars of in-kind contributions.

The Republican Party's complaint doesn't provide any evidence of coordination between the Burke campaign and Trek over the ad, which cost an estimated $22,000. Both Trek and the Burke campaign have denied coordinating over the ad.

This is in contrast with the subjects of the John Doe investigation.

Wisconsin Club for Growth, Wisconsin Manufacturers & Commerce, and the Walker campaign have never denied coordinating over the millions of dollars of ads run during the recalls. They've only claimed that such coordination would not be illegal since it didn't involve express advocacy.

"I hope the GAB does look at this," Heck said. "It would be an interesting side-by-side with the facts in the John Doe investigation."