WISCONSIN: A VICTORY FOR FREE SPEECH
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Chalk up a big victory for the First Amendment. On Friday a Wisconsin judge struck a major blow for free political speech when he quashed subpoenas to conservative groups and ordered the return of property to the targets of a so-called John Doe campaign-finance probe.
John Doe probes operate much like grand juries, allowing prosecutors to issue subpoenas and conduct searches while gag orders require the targets to keep quiet. We wrote about the kitchen-sink subpoenas and morning raids by special prosecutor Francis Schmitz that targeted dozens of conservative groups that participated in the battle to recall Republican Governor Scott Walker (“Wisconsin Political Speech Raid,” Nov. 16, 2013).
Now we learn that Judge Gregory A. Peterson ruled on Friday that at least some of those subpoenas were improper. They “do not show probable cause that the moving parties committed any violations of the campaign finance laws,” he wrote. His opinion remains under seal but we obtained a copy.
Wisconsin Gov. Scott Walker Reuters
The quashed subpoenas were sent to Friends of Scott Walker, Wisconsin Manufacturers & Commerce Inc., the Wisconsin Club for Growth, and Citizens for a Strong America, as well as their officers and directors. Judge Peterson’s order doesn’t apply to other subpoena targets, but they can presumably get the same result if they file a motion with the judge and have a similar factual basis.
The order is all the more remarkable because it bluntly rejects the prosecutor’s theory of illegal coordination between the groups and the Walker campaign. Wisconsin’s campaign finance statutes ban coordination between independent groups and candidates for a “political purpose.” But a political purpose “requires express advocacy,” the judge wrote, and express advocacy means directly advocating the election or defeat of a candidate.
“There is no evidence of express advocacy” and therefore “the subpoenas fail to show probable cause that a crime was committed,” Judge Peterson wrote. Even “the State is not claiming that any of the independent organizations expressly advocated” for the election of Mr. Walker or his opponent, he added. Instead they did “issue advocacy,” which focuses on specific political issues.
This means that prosecutors essentially invented without evidence the possibility of criminal behavior to justify the subpoenas and their thuggish tactics. At least three targets had their homes raided at dawn, with police turning over belongings, seizing computers and files, and even barring phone calls.
The judge’s order vindicates our suspicion that the John Doe probe is a political operation intended to shut up Mr. Walker’s allies as he seeks re-election this year. No one has taken public credit for appointing the special prosecutor, but we know the probe began in the office of Milwaukee County Assistant District Attorney Bruce Landgraf.
Mr. Landgraf works for Milwaukee County Democratic D.A. John Chisholm, and this is their second secret probe of Mr. Walker. The first one ended with small-time violations against Walker aides but didn’t touch the Governor.
The subpoenas asked for all information and data and communications stretching back to 2009, two years before the recall elections that were supposedly the central issue. Because the subpoenas sought both donor identities and internal communications of the targeted groups, they failed to demonstrate the narrow and targeted investigation that the First Amendment demands. Our sources also say that only conservative groups were targeted.
Democrats would love to intimidate and muzzle the local activists who rallied to Mr. Walker’s recall defense. And the subpoenas all but shut down these activists, forcing them to hire lawyers and defend themselves rather than contribute to the political debate in an election year. Beyond 2014, the prosecutors’ goal seems to be raise the cost of participation so the subpoena targets decide to quit politics.
The first John Doe judge, retired Kenosha County Circuit Judge Barbara Kluka, recused herself from the case, though not until she had signed off on the subpoenas. The Milwaukee Journal Sentinel reported that, according to information from an open-records request, Judge Kluka made $445.15 for her time on the case, about a day’s work. She must work fast. Judge Peterson replaced her, and the cause of free speech is better for it.
The John Doe probe isn’t over, and no doubt Messrs. Schmitz and Landgraf will appeal the ruling to quash. But that should give the subpoena targets an opening to expand their defense beyond merely stopping this political trolling exercise. They can marshal constitutional arguments that should aim to dismantle the prosecutorial machinery of these illegal campaign-finance investigations.
The John Doe process has become a political weapon intended to serve partisan ends regardless of the law. Kudos to a judge who was brave enough to read the law and stop it, but there’s more free-speech defending to do.
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