Democrats are giddy over the unsealing of “secret” documents that charge Scott Walker’s recall campaign with illegal coordination with outside conservative groups. To name just a few: USA Today: “Prosecutors: Wis. Gov. Scott Walker in criminal scheme.” Associated Press: “Prosecutors: Gov. Walker part of criminal scheme.” Washington Post: “How the State of Wisconsin alleges Scott Walker aides violated the law, in 1 chart.”
If you didn’t know better, you might think this is a big story, highly damaging to one of America’s most successful governors. In fact, the current frenzy merely demonstrates the laziness and bias of reporters who don’t understand the events they write about.
Here is what is going on: a group of partisan local prosecutors launched a never-ending “John Doe investigation” into essentially every conservative group in the state of Wisconsin. The “investigation” is a scandal, a naked effort to shut down conservative speech. Federal Judge Rudolph Randa described how the investigation proceeded in an Order dated May 6, 2014:
Early in the morning of October 3, 2013, armed officers raided the homes of R.J. Johnson, WCFG advisor Deborah Jordahl, and several other targets across the state. ECF No. 5-15, O‘Keefe Declaration, ¶ 46. Sheriff deputy vehicles used bright floodlights to illuminate the targets‘ homes. 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. The warrants indicate that they were executed at the request of GAB investigator Dean Nickel.
On the same day, the Club‘s accountants and directors, including O‘Keefe, received subpoenas demanding that they turn over more or less all of the Club‘s records from March 1, 2009 to the present. The subpoenas indicated that their recipients were subject to a Secrecy Order, and that their contents and existence could not be disclosed other than to counsel, under penalty of perjury. The subpoenas’ list of advocacy groups indicates that all or nearly all right-of-center groups and individuals in Wisconsin who engaged in issue advocacy from 2010 to the present are targets of the investigation.
The case in which Judge Randa ruled was brought by the Club For Growth and Eric O’Keefe. Plaintiffs alleged that the purported investigation was in reality an unconstitutional infringement of their First Amendment rights, intended to deter the expression of conservative speech. Judge Randa agreed. In his May 6 Order, he found that the partisan “investigation” had no legal basis:
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 and requiring that money spent on such speech be reported as an in-kind campaign contribution. This interpretation is simply wrong.
Judge Randa analyzed the law as it relates to campaign finance. He noted that the conservative groups denied any coordination, and their denials appear to be well-founded. But, in any event, their activities were constitutionally protected and cannot be the basis of a criminal investigation:
It is undisputed that O‘Keefe and the Club engage in issue advocacy, not express advocacy or its functional equivalent. Since § 11.01(16)’s definition of “political purposes” must be confined to express advocacy, the plaintiffs cannot be and are not subject to Wisconsin‘s campaign finance laws by virtue of their expenditures on issue advocacy.
However, the defendants argue that issue advocacy does not create a free-speech “safe harbor” when expenditures are coordinated between a candidate and a third-party organization. Barland at 155 (citing Fed. Election Comm’n v. Colo. Republican Fed. Campaign Comm., 533 U.S. 431, 465 (2001)); see also Republican Party of N.M. v. King, 741 F.3d 1089, 1103 (10th Cir. 2013). O‘Keefe and the Club maintain that they did not coordinate any aspect of their communications with Governor Walker, Friends of Scott Walker, or any other candidate or campaign, and the record seems to validate that assertion. However, the Court need not make that type of factual finding because — once again — the phrase “political purposes” under Wisconsin law means express advocacy and coordination of expenditures for issue advocacy with a political candidate does not change the character of the speech. Coordination does not add the threat of quid pro quo corruption that accompanies express advocacy speech and in turn express advocacy money. Issue advocacy money, like express advocacy money, does not go directly to a political candidate or political committee for the purpose of supporting his or her candidacy. Issue advocacy money goes to the issue advocacy organization to provide issue advocacy speech. A candidate‘s coordination with and approval of issue advocacy speech, along with the fact that the speech may benefit his or her campaign because the position taken on the issues coincides with his or her own, does not rise to the level of “favors for cash.” Logic instructs that there is no room for a quid pro quo arrangement when the views of the candidate and the issue advocacy organization coincide.
Judge Randa concluded that the Club For Growth was likely to prevail on the merits, and he issued an order directing the partisan prosecutors to cease their unconstitutional investigation:
Therefore, for all of the foregoing reasons, the plaintiffs are likely to succeed on their claim that the defendants’ investigation violates their rights under the First Amendment, such that the investigation was commenced and conducted “without a reasonable expectation of obtaining a valid conviction.” Kugler v. Helfant, 421 U.S. 117, 126 n.6 (1975); see also Collins v. Kendall Cnty., Ill., 807 F.2d 95, 101 (7th Cir. 1986); Wilson v. Thompson, 593 F.2d 1375, 1387 n.22 (5th Cir. 1979).
Judge Randa’s conclusion is politely phrased, but understand what he is saying: the partisan prosecutors are so obviously wrong on the law that they could not have had a reasonable expectation of convicting anyone of anything. Their so-called investigation was in fact mere harassment, intended to chill the exercise of First Amendment rights by conservatives.
The next stage involved procedural maneuvering that I won’t try to explain. The prosecutor defendants appealed to the 7th Circuit Court of Appeals and argued that Judge Randa lacked jurisdiction to order them to terminate their faux investigation. The Court of Appeals issued an order to the effect that Judge Randa would need to make a finding that the defendants’ appeal was frivolous in order to retain jurisdiction. That resulted in another Order, dated May 8, 2014, in which Judge Randa described the discredited prosecutors’ appeal as “the height of frivolousness.” He continued:
To be clear, the Court is absolutely convinced that the defendants’ attempt to appeal this issue is a frivolous effort to deprive the Court of its jurisdiction to enter an injunction.
An appellate judge has now ordered certain pleadings in the case to be unsealed, an order to which the Club For Growth did not object. The hysterical accusations against Scott Walker that the Associated Press, the Washington Post and others are now gleefully celebrating are simply the unfounded assertions that the prosecutors made in a failed effort to justify their partisan investigation. They are precisely the allegations that have been resoundingly rejected by the federal judge who has presided over the case and who has found the defendants’ investigation to be a naked violation of the conservative groups’ constitutional rights.
So the reporters who are now trumpeting the discredited prosecutors’ assertions either have no understanding of the case, or they are part of the partisan witch hunt that gave rise to the unconstitutional investigation in the first place.