A First Amendment Education :What the Press Corps isn’t Telling You About the Scott Walker Probe.
http://online.wsj.com/articles/a-first-amendment-education-1409872299?mod=Opinion_newsreel_3
The selective investigation of the political speech of Wisconsin Governor Scott Walker’s allies goes to the Seventh Circuit Court of Appeals next week, and with any luck the judges will vindicate a district court’s preliminary injunction that has shut down the probe. They should do so before the November election because this unconstitutional exercise is being exploited by Mr. Walker’s enemies to defeat him.
The latest media misinformation concerns emails that show Mr. Walker raised money for the Wisconsin Club for Growth. But raising money for Super Pacs and 501(c) groups is routine political behavior, as President Obama and Harry Reid routinely demonstrate.
Prosecutors pursuing Mr. Walker have been pushing a theory of campaign-finance law that the state’s own campaign finance regulator, the Government Accountability Board, has admitted is unconstitutional under Supreme Court precedent. The theory has also been rejected by the Seventh Circuit and by two judges in the Walker probe.
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You’d never guess any of this from reading the anti-Walker press. Legal activity is made to look nefarious with loose references to terms like “coordination” that have precise definitions for what qualifies as political advocacy under the law.
The Washington Post said Mr. Walker solicited contributions from donors “to give large contributions to an allied tax-exempt group that backed him and other state GOP lawmakers.” Well, no, because the Club for Growth never ran campaign ads for Mr. Walker. The NYTIMES said one of Mr. Walker’s campaign aides “directed the political spending of the outside groups, most of them nonprofits, and in effect controlled some of them.” No again, because one person’s relationship with two groups does not equal control or coordination under the law.
In a recent online chat, a reader asked Daniel Bice, the Milwaukee Journal Sentinel’s go-to reporter for prosecutors, why his articles failed to explain the difference between “express advocacy” and “issue advocacy”—a crucial distinction in the law on coordination between political campaigns and outside groups.
“The reason we don’t go into great detail on express advocacy is that you can’t discuss it without going into great detail. As you just did,” Mr. Bice responded. So Mr. Bice admits that he leaves out crucial information because it’s all so very complicated. We’re sorry if campaign law has become so complex that the relevant details can’t fit in a newspaper article, but allow us to give it a try.
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Under campaign-finance law, express advocacy is speech that explicitly supports the election or defeat of a candidate for political office. Ads by independent groups are generally identified as express advocacy when they use words like “vote for” or “cast your ballot for.” Those ads count toward a group’s percentage of political activities for the purposes of tax exemption and are considered to have a “political purpose” under the law.
Issue advocacy encompasses the rest of the universe of independent groups’ speech on policy. Issue ads by an environmental group might say, “Our power plants are polluting, call your Senator and tell her it’s important to protect our planet.” Another issue ad might say, “The drug war is incarcerating too many people, tell our Governor to veto this bill.” While issue ads frequently share the priorities of a politician, they focus on a policy issue, not on the election or defeat of a candidate.
This distinction is critical because while express advocacy is considered speech that can be regulated, issue advocacy is speech that has the highest level of constitutional protection. The right of citizens to petition their government and to rally friends and neighbors to a cause is at the heart of what the First Amendment is intended to protect.
Which brings us to “coordination.”
Under the law, coordination between a political campaign and an independent group is illegal only if it is the functional equivalent of a monetary contribution to the campaign. Imagine a candidate who calls an independent group and says, “hey, we’ve made an ad we’d like to run in the Milwaukee suburbs, but we’re a little short on money. Can you do it?” That arrangement amounts to a contribution to a candidate, raising the risk of quid pro quo corruption, the standard the Supreme Court has said must be met for regulating political speech.
Short of that, neither collaboration among independent groups nor communication between independent groups and a political campaign is illegal. On the contrary, it is speech protected by the First Amendment.
All of this explains why the John Doe investigation by Democratic Milwaukee District Attorney John Chisholm has been rejected in court: His conservative targets never engaged in express advocacy. As John Doe Judge Gregory Peterson wrote in his opinion quashing subpoenas, “The only clearly defined political purpose is one that requires express advocacy” and “the state is not claiming that any of the organizations expressly advocated” so the subpoenas “fail probable cause.”
Wisconsin prosecutors claim Mr. Walker was “coordinating” fundraising with the Wisconsin Club for Growth and thus the group’s activities qualify as in-kind contributions to the Walker campaign. But as Judge Peterson explained, “Before there is coordination, there must be political purposes; without political purposes coordination is not a crime.”
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The real in-kind campaign contribution here has been from prosecutors to Mr. Walker’s Democratic challenger Mary Burke. Their efforts have hobbled fund-raising at many of the most effective conservative independent groups and forced them to spend hundreds of thousands on lawyers to defend their rights in court. Ms. Burke has made the probe part of her campaign and it has helped her get close in the polls.
The prosecution brings to mind the abuses against the late Ted Stevens, who was convicted of corruption in office only weeks before an election because prosecutors withheld exculpatory evidence. In Wisconsin the prosecution has used a secret probe and selective leaks to make legal fund-raising appear illegal.
Eric O’Keefe of the Wisconsin Club for Growth and his lawyer David Rivkin have bravely challenged this as an unconstitutional abuse of Mr. O’Keefe’s civil rights. It would vindicate the rule of the law and improve the hygiene of American politics if the Seventh Circuit stops prosecutors cold.
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