The feds get one right
Posted on May 13, 2014 by Steve Prestegard
The Wall Street Journal:
The four-year effort by Democratic prosecutors to criminalize political speech in Wisconsin has hit the wall of the U.S. Constitution. In a ruling that could have consequences nationwide, federal judge Rudolph Randa issued a preliminary injunction Tuesday ending the secret John Doe probe of allies of Governor Scott Walker.
We’ve been telling you for months about the secret Wisconsin John Doe, which operates like a grand jury and forces targets to remain silent. The targets are right-of-center groups disliked by Milwaukee County District Attorney John Chisholm, his special prosecutor Francis Schmitz, and the left-leaning state Government Accountability Board that regulates campaign finance.
Prosecutors were able to leak details with impunity until one of the targets, Eric O’Keefe, went public to us last November about the abuse of power. He also sought Washington attorney David Rivkin to file a federal civil-rights lawsuit to shut down the probe, and that’s what Judge Randa responded to [last] Tuesday.
Prosecutors had justified their dawn raids and harassment in the name of exposing illegal coordination between the Walker campaign and conservative groups. But Judge Randa ruled that the investigation was based on a mistaken reading of campaign-finance law that violated Mr. O’Keefe’s First Amendment’s rights. “The defendants are pursuing criminal charges through a secret John Doe investigation against the plaintiffs for exercising issue advocacy speech rights that on their face are not subject to the regulations or statutes the defendants seek to enforce,” the judge wrote.
Mr. O’Keefe, director of the Wisconsin Club for Growth, had merely advocated for issues he cares about, which is protected speech. “O’Keefe and the Club obviously agree with Governor Walker’s policies,” the judge added, “but coordinated ads in favor of those policies carry no risk of corruption because the Club’s interests are already aligned with Walker and other conservative politicians.”
It’s worth noting that Judge Randa is the second judge to find that the prosecutors are wrong on the law. In January Wisconsin Judge Gregory Peterson quashed subpoenas that he ruled were based on a misreading of campaign-finance law. Prosecutors are appealing Judge Peterson’s ruling, which we told you about on Jan. 13 though it is under John Doe seal.
It’s worth noting that prosecutors would still be continuing their harassment without legal or political accountability if not for Mr. O’Keefe’s willingness to go public—at considerable personal risk. Mr. Chisholm and his deputy, Bruce Landgraf, are noted Democrat partisans with a vindictive streak.
Whether or not they ever brought charges, they also knew their probe would effectively shut down center-right spending as Mr. Walker and Republicans try to win re-election this year. The Wisconsin Club for Growth spent some $8 million on advertising or grants to other groups in 2012 during the recall campaign against Mr. Walker. In 2013 it spent $1.7 million but has been silent since the John Doe subpoenas hit in October.
Similar damage has been done to conservative groups across the state. According to the Wisconsin Democracy Campaign, Wisconsin Manufacturers and Commerce spent some $4 million during the recall campaign in 2012, but aside from a small local radio campaign about an asbestos trust issue this year, the group has been off the air.
Like the IRS targeting of conservative nonprofits, the Wisconsin John Doe shows how campaign-finance laws have become a liberal weapon to silence political opponents. Prosecutors claim to be fighting the risk of corruption from “dark money” in politics. But their enforcement attempts, done in secret and unrestrained by Constitutional guardrails, have become far more politically corrupting.
George S. Will:
The prosecutors’ cynical manipulation of Wisconsin’s campaign laws is more than the mere appearance of corruption. Eric O’Keefe’s refusal to be intimidated by lawless law-enforcement officials produced Randa’sremarkably emphatic ruling against an especially egregious example of Democrats using government power to suppress conservatives’ political speech.
Wisconsin’s sordid episode began, appropriately, with a sound of tyranny — fists pounding on the doors of private citizens in pre-dawn raids. While sheriff’s deputies used floodlights to illuminate the citizens’ homes, armed raiders seized documents, computers, cell phones, and other devices.
As a director of Wisconsin Club for Growth, which advocates limited government, O’Keefe had participated in his state’s 2012 debate surrounding attempts by Democrats and state and national government-employee unions to recall Republican governor Scott Walker and some state senators. The recalls were intended as punishment for legislation limiting the unions’ collective-bargaining rights.
Walker prevailed. The Democratic prosecutors, however, seeking to cripple his 2014 reelection campaign and to damage him as a potential 2016 presidential aspirant, have resorted to a sinister Wisconsin process called a “John Doe investigation.” It has focused on the activities of O’Keefe and 28 other conservative individuals or organizations.
In such investigations, prosecutors can promiscuously issue subpoenas and conduct searches. The identities of the targets are kept secret, and the targets are silenced by gag orders, thereby preventing public discussion of the process. Thus John Doe investigations are effective government instruments of disruption and intimidation. …
O’Keefe and the other harassed conservatives had engaged only in issue advocacy, not express advocacy. That is, they had not urged the election of specific candidates. The U.S. Supreme Court has held that government regulation of political speech is permissible only to prevent quid pro quo corruption — money purchasing political favors — resulting from express advocacy. Hence there is no justification for the prosecutors’ punitive investigation of O’Keefe’s and others’ issue advocacy. As Randa said, this hasno “taint of quid pro quo corruption” and thus “is not subject to regulation.”
The Democratic prosecutors must know this. Again, they ignore it because their aim is mayhem, not law enforcement. Their activity is entirely about suffocating conservative activity. Because the prosecutors know Wisconsin law, they are patently disingenuous in arguing that O’Keefe and others illegally “coordinated” their advocacy with Walker and other candidates or campaigns. Randa said “the record seems to validate” O’Keefe’s and the others’ denial of coordination.
Besides, and even more important, Randa said his court “need not make that type of factual finding.” Wisconsin law forbids coordination between third-party groups, such as O’Keefe’s, and candidates only for express advocacy, and Randa said “it is undisputed” that O’Keefe and his group engaged only in issue advocacy. The prosecutors’ indifference to this is their corruption.
Liberals inveighing against “dark money” in politics mean money contributed anonymously to finance political advocacy. Donors’ anonymity thwarts liberals’ efforts to injure the livelihoods of identifiable conservatives by punishing them for their political participation and thereby deterring others from participating.
O’Keefe’s persecution illustrates the problem his lawyer David Rivkin calls “dark power” — government power wielded secretively for vengeance and intimidation. Judge Randa quoted the Supreme Court’s 2010 Citizens Uniteddecision: The First Amendment is “premised on mistrust of governmental power.” And he noted that “the danger always exists that the high purpose of campaign regulation and its enforcement may conceal self-interest.”
Randa is insufficiently mistrustful. Campaign regulation, although invariably swathed in lofty rhetoric, is designed to disguise regulation’s low purpose, which is to handicap political rivals. If Wisconsin is serious about eliminating political corruption, it can begin by eliminating corrupt prosecutors and processes, and the speech regulations that encourage both.
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