Conservative advocacy groups win key court battle -- but the Left vows to keep up the fight.
The relentless efforts by Wisconsin leftists to undermine Gov. Scott Walker and his fellow conservatives—by any means necessary—has taken another hit. In a 26-page decision, U.S. District Judge Rudolph Randa granted a preliminary injunction halting a politically-motivated John Doe investigation that probed campaign spending and fundraising by Gov. Scott Walker's campaign, Eric O'Keefe, his Wisconsin Club for Growth (WCFG), and other conservative entities. "The Defendants must cease all activities related to the investigation, return all property seized in the investigation from any individual or organization, and permanently destroy all copies of information and other materials obtained through the investigation,” Randa wrote.
Randa illuminated his contempt for the investigation. "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. This legitimate exercise of O‘Keefe‘s rights as an individual, and WCFG‘s rights as a 501(c)(4) corporation, to speak on the issues has been characterized by the defendants as political activity covered by Chapter 11 of the Wisconsin Statutes, rendering the plaintiffs a subcommittee of the Friends of Scott Walker (―FOSW‖) and requiring that money spent on such speech be reported as an in-kind campaign contribution. This interpretation is simply wrong.”
As a result, Randa ordered that the plaintiffs “and others” are “hereby relieved of any and every duty under Wisconsin law to cooperate further with Defendants‘ investigation. Any attempt to obtain compliance by any Defendant or John Doe Judge Gregory Peterson is grounds for a contempt finding by this Court.”
The ruling completely undermines the efforts of Milwaukee County District Attorney John Chisholm, a Democrat, who launched the probe in mid-2012, shortly after Democrats’ failure to remove Walker in a recall election prompted by the passage of Act 10. That piece of legislation limited the power of unions to collectively bargain, setting the stage for a ferocious pushback that included Democratic state legislators fleeing the state to prevent a vote on the issue, an effort to effect a liberal majority on the Wisconsin Supreme Court for the purpose of overturning the law, and the attempt to remove Walker in the aforementioned recall vote that ultimately failed.
The unseemly probe, led by special prosecutor Francis Schmitz, targeted Walker and 29 conservative groups. Dozens of subpoenas were issued demanding documents related to the 2011 and 2012 campaigns aimed at recalling Walker and several Republican state legislators. The probe itself expanded into a five-county investigation as a result of cooperation with the Government Accountability Board (GAB), that operates as Wisconsin’s election and campaign speech regulator. Besides Walker and the WCFG, other targeted groups included the League of American Voters, Wisconsin Family Action, Wisconsin Manufacturers & Commerce, Americans for Prosperity—Wisconsin, American Crossroads, the Republican Governors Association, and the Republican Party of Wisconsin.
Because the investigation took place under the state’s John Doe law, prosecutors were empowered to issue subpoenas and conduct searches, even as gag orders prevented the targets of the probe from publicly defending themselves.While the investigation was ongoing, O’Keefe told the Wall Street Journal that he was aware of at least three of the investigation’s targets being subjected to dawn raids of their homes, with law-enforcement officers seizing computers and files.
In a testament to Democratic relentlessness, this was the second probe of Walker in the last four years. In 2010, Chisholm spearhead a Joe Doe effort to investigate whether staffers used their offices for political purposes when Walker was Milwaukee County Executive. After three years Walker emerged unscathed when retired Appeals Court Judge Neal Nettesheim signed an order shutting down that secret investigation.
Randa described the heavy-handed tactics employed by law-enforcement officials in the second probe. “Sheriff deputy vehicles used bright floodlights to illuminate the targets’ homes,” he wrote. “Deputies executed the search warrants, seizing business papers, computer equipment, phones, and other devices, while their targets were restrained under police supervision and denied the ability to contact their attorneys. Among the materials seized were many of the Club’s records that were in the possession of Ms. Jordahl and Mr. Johnson,” Randa continued. “The warrants indicate that they were executed at the request of GAB investigator Dean Nickel.”
The latest injunction was a response to the civil rights lawsuit filed in February by O’Keefe and the WCFG against Chisholm, two of his assistant DAs, Schmitz, and an investigator contracted by the Government Accountability Board. That suit alleged that the John Doe investigation constituted a violation of the targeted groups' First Amendment rights in what amounted to a partisan witch-hunt aimed at punishing Walker, et al., for their recent political success.
The prosecutors-turned-defendants attempted to derail Randa’s ruling with an emergency stay filed Monday with the Seventh Circuit U.S. Court of Appeals. It followed Randa’s rejection the previous week of a motion to stay his ruling that allowed the civil rights suit against these prosecutors to move forward. In that ruling, Randa contended the effort was nothing more than an attempt to “derail” his decision, and that he was “inclined to agree” with O’Keefe’s contention that efforts to obtain relief were frivolous. Prosecutors had contended that the federal court had no jurisdiction in the matter, citing the U.S. Constitution’s Eleventh Amendment limitation on federal judicial powers with regard to the states.
Randa didn’t buy it, asserting that “if the defendants are violating the plaintiffs’ constitutional rights, the Eleventh Amendment does not apply and the plaintiffs are entitled to injunctive relief.”
In this latest ruling, Randa shot down the John Doe investigators’ assertion that, even though issue advocacy that rightfully omits direct advocacy for or against a candidate is permissible, it “does not create a free-speech safe harbor when expenditures are coordinated between a candidate and a third-party organization.” They sought to portray the WCFG and other targeted organizations as a "subcommittee of the Friends of Scott Walker," and thus subject to Chapter 11 of Wisconsin campaign finance statutes, "requiring that money spent on such speech be reported as an in-kind campaign contribution.”
“This interpretation is simply wrong,” the judge wrote drawing on the recent Supreme Court decision in McCutcheon v. FEC that invalidated aggregate limits on campaign donations. Describing that ruling as a “a ringing endorsement of the full protection afforded to political speech,” Randa explained that while issue advocacy may involve like-minded entities sharing the same political philosophies as a candidate, such advocacy does not constitute quid quo pro.
“O‘Keefe and the Club obviously agree with Governor Walker‘s policies, 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,” the ruling states. “Such ads are meant to educate the electorate, not curry favor with corruptible candidates.”
He further characterized the prosecutors’ attempt to conflate issue advocacy and express advocacy as “interpretive legerdemain.” “If correct, this means that any individual or group engaging in any kind of coordination with a candidate or campaign would risk forfeiting their right to engage in political speech,” Randa wrote.
Schmitz said late Tuesday he expects to challenge the decision by appealing to the 7th Circuit Court of Appeals in Chicago. "I'm virtually assured we will appeal this decision,” he declared. "I have to consult with the others and my attorney" before making a "final decision.” His attorney, Randall Crocker, issued a statement saying he "will carefully review the decision of Judge Randa and address with our client his responsibilities pursuant to his appointment and his options."
University of Wisconsin professor Donald Downs, who was stunned by the decision, predicts a reversal of Randa’s ruling could prompt a move to the U.S. Supreme Court. "If the Seventh Circuit reverses, it'll go to the Supreme Court, believe me. And they'll take it because they're hot to trot on these issues right now,” he said.
In the meantime, another effort to derail Gov. Scott Walker has crashed and burned. Moreover, he remains favored in the 2014 race against Democrat Gubernatorial candidate Mary Burke by an average margin of 5.2 percentage points. It will be interesting to see what happens to that margin now that Judge Randa has unshackled conservative advocacy groups from their would-be oppressors—oppressors who have never put Democratic advocacy groups under the same prosecutorial microscope, or subjected them to the same paramilitary raids conducted here.
"The plaintiffs have been shut out of the political process merely by association with conservative politicians,” Randa wrote. "This cannot square with the First Amendment and what it was meant to protect.” Exactly.
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