The latest battle in Wisconsin’s political wars shows what happens when laws that regulate political speech intersect with prosecutorial power to engage in open‐ended investigations. “When government attempts to regulate the exercise of this constitutional right, through campaign finance laws or otherwise,” explained U.S. District Judge Rudolph Randa in a recent ruling, “the danger always exists that the high purpose of campaign regulation and its enforcement may conceal self‐interest.”
Judge Randa was writing about Milwaukee County DA John Chisholm’s pursuit of “all or nearly all right‐of‐center groups and individuals in Wisconsin who engaged in issue advocacy from 2010 to the present.” Finding that Eric O’Keefe, the Wisconsin Club for Growth, and other limited‐government advocates “have been shut out of the political process merely by association with conservative politicians,” Randa stopped a probe that had begun in August 2012 and was now run by a special prosecutor.
The investigation targeted alleged “illegal coordination” between Governor Scott Walker and independent advocacy groups. Using a rare and secretive “John Doe” mechanism, it built on a previous inquiry that began before Walker’s gubernatorial election and had become a roving inquisitor. (Wisconsin law, like its federal equivalent, limits the amount that any individual can contribute to a political candidate, and thus also prohibits using outside groups as campaign proxies.)
As Judge Randa’s ruling made clear, there was no “express advocacy” supporting any particular candidate—there weren’t even issue ads relating to the 2012 recall—let alone coordination of such advocacy. All the groups did was to speak out in support of market‐oriented reforms, including those that Walker pushed regarding public‐sector benefits and collective bargaining rights.
This all sounds very dry and technical: government lawyers couldn’t prove the violation of obscure election regulations. But an ordinary lawyering failure doesn’t typically involve predawn raids where sheriff deputies “used bright floodlights … seizing business papers, computers, phones, and other devices, while their targets were restrained under police supervision and denied the ability to contact their attorneys,” or wide‐ranging subpoenas subject to a secrecy order—which a state judge ultimately quashed.
In other words, what happened here was that like‐minded individuals got together to support certain public policies. For that “suspicious” behavior, the full force of government came down on them, shutting down their advocacy during this election year. Again, the chilling effect goes broader than election‐related speech: the Wisconsin Club for Growth was silent during the recent legislative pushes for tax reform—the group’s signature issue—and expanded school choice. The former still passed, but the latter narrowly failed, which means that the censors won despite the court rulings against them.
That politically motivated prosecutorial abuse is bad enough, but this is more than about Democratic officials pulling the levers of power to stymie their political opponents. It’s a story of how the laws themselves are corrupt, as are the methods used to apply them. Wisconsin law is unusually complicated in that regard; the U.S. Court of Appeals for the Seventh Circuit two weeks ago struck down other burdens on issue advocacy while detailing enforcement shenanigans and calling the state campaign rules “labyrinthian and difficult to decipher without a background in this area of the law.”
This John Doe fiasco reminds us that campaign finance laws give the government the power to say who can speak, how much, and on what subject. That’s not because “money is speech”—it’s not, any more than printing presses, bullhorns, or laptops are—but restrictions on anything that facilitates speech violates the First Amendment. As Judge Randa put it, the John Doe prosecutors defend the public interest in “enforcing a law that restricts First Amendment freedoms. Obviously, the public interest is served by the exact opposite proposition.”
The underlying problem is that political money is a moving target that will flow somewhere so long as what the government does matters. To the extent that “money in politics” is a problem, the solution is to reduce the scope of political activity that the money can influence. Shrink the size of government and you’ll shrink the amount people spend to get their piece of the pie.
Moreover, only three states have John Doe statutes, so legislators in Kansas and Michigan, in addition to Wisconsin, should consider how grand jury investigations proceed elsewhere, without this invitation for political retribution and abuse.
Restrictions on political speech are bad enough, but when they’re accompanied by paramilitary raids and gag orders, nobody’s freedom is secure. Ultimately, the way to “take back our democracy” isn’t to use speech codes and secret investigations more fairly but to get rid of them altogether.