Criminalizing Conservatism
In Scott Walker’s Wisconsin, prosecutors would shut down all conservative activity.
By Jon Cassidy – 8.29.14
Wisconsin has created a new type of political supervillain by combining the most reprehensible attributes of this nation’s two most infamous ogres of the last century — Joseph McCarthy and Richard Nixon.
Start with McCarthy’s reckless and unsubstantiated allegations against random names on a list, his endless investigations that produced nothing but press coverage and ruined lives. Then take Nixon’s vindictiveness, his desire to use the mechanisms of state to crush his political enemies, and remove the legal impediments that kept him from doing much about it. Give him laws like Wisconsin’s.
There never would have been any Cubans breaking into the Watergate to take a look at the files of the Democratic National Committee or plant bugs. G. Gordon Liddy and E. Howard Hunt could have just written subpoenas for whatever they wanted without restriction. When there’s nobody to stop them, it turns out that what they want to look at is everything.
Newly unsealed federal court documents show that a crew of local prosecutors — Milwaukee County District Attorney John Chisholm, a Democrat, his assistants, Bruce Landgraf and David Robles, a figurehead special prosecutor named Francis Schmitz, and a contract investigator named Dean Nickel — have exploited state law to seize “more or less all” the records of the Wisconsin Club for Growth and every other conservative group in the state dating back to 2009 as part of a boundless investigation of their own wild hunches.
Despite their unhindered access to the complete inner workings of the conservative movement in Wisconsin, these prosecutors have come up with nothing. They say they’re looking into campaign finance violations, but the facts they’ve compiled don’t even amount to “probable cause” to believe a crime has taken place, according to the state court that finally halted the investigation earlier this year. For one reason, the “issue ads” that the Wisconsin Club for Growth ran in defense of the state’s collective bargaining reforms “cannot be and are not subject to Wisconsin’s campaign finance laws,” according to a ruling by U.S. District Court Judge Rudolph T. Randa.
But prosecutors knew that before they started. In a sense, they’re trying to prove murder when they know nobody died. The distinction between issue advocacy, which is constitutionally protected free speech, and express advocacy of a candidate, which may be regulated to prevent corruption, has been around since 1976, and is understood by just about everyone, even these prosecutors. The local media don’t get it, but what else is new?
The prosecutors’ real intent in having armed officers in flak vests storming homes at dawn and in issuing as many as 100 subpoenas to 29 different right-of-center organizations is to shut down conservatives in Wisconsin, according to the plaintiffs. And in that, they’ve been wildly successful, as all of the most active conservative groups are off the airwaves and taking few phone calls from their fellows, lest they get hit with new subpoenas and criminal accusations.
In February, the Wisconsin Club for Growth and its founder, Eric O’Keefe, filed a federal civil rights lawsuit, arguing that the prosecutors were abusing their offices and targeting them for their expression of political opinions. Randa seems inclined to agree, and he dismissed the prosecutors’ argument that they were protected by absolute sovereign immunity for a fitting reason: apparently, if you haven’t established probable cause to go kicking in someone’s door, there’s a chance you might be held liable for your intrusions.
In legal briefs, O’Keefe’s attorneys compare the prosecutors to officials in Louisiana under Jim Crow, taking passages from a 1965 Supreme Court ruling that are perfectly apt here. In that case,
[T]he Court acted to enjoin state officials from prosecuting or threatening to prosecute a civil rights group and its leaders as part of “a plan to employ arrests, seizures, and threats of prosecution under color of the statutes to harass appellants and discourage them and their supporters from asserting and attempting to vindicate the constitutional rights of Negro citizens of Louisiana.” These actions, the Court held, were undertaken specifically to impose a “chilling effect on free expression.” In particular, the state officials’ actions were calculated to “frighten off potential members and contributors”; their “
eizures of documents and records have paralyzed operations and threatened exposure of the identity of adherents to a locally unpopular cause”; and “the continuing threat of prosecution portends further arrests and seizures, some of which may be upheld and all of which will cause the organization inconvenience or worse.”
So add a little Bull Connor to our McCarthy/Nixon hybrid, and if you like, splice in some DNA from your favorite Eastern Bloc secret police agency, as this investigation has been carried out in complete darkness for four years, with the worst abuses just now coming to light.
Newly unsealed records show how the prosecutors of these John Doe investigations, as they’re known, were able to take the thinnest pretext — some money was missing from a charity fund — and turn it into a general warrant to harass conservatives statewide.
On April 23, 2009, Scott Walker’s chief of staff as Milwaukee County executive, Thomas Nardelli, told an investigator from the Milwaukee DA’s office that he suspected that a staffer named Kevin Kavanaugh had pocketed $11,000 from a charity fund. (Three years later, Kavanaugh was convicted of embezzling $42,000.) But the DA did nothing about the report until a year later. “During the time that Chisholm’s office sat on the request, one thing changed: Scott Walker, campaigning as a conservative reformer, had become the frontrunner for governor,” the plaintiffs write.
Nine days after opening an investigation, the DA’s office expanded it to include a Walker staffer who had posted a few comments to news articles from her work computer. The crime was beyond trifling, but the pretext let them seize her computer and review all her records. In November, prosecutors executed search warrants on Walker’s office and a staffer’s home — the day before the gubernatorial election.
And so it proceeded, each contact list providing new names for subpoenas, under a peculiar and highly secretive Wisconsin institution known as a John Doe investigation. These are sometimes compared to grand jury investigations without the grand jury. Prosecutors can have subpoenas issued on nothing but a hunch, and the judge supposedly overseeing the investigation has no authority to restrict them, as state law says the judge “shall subpoena and examine any witnesses the district attorney identifies.” With grand juries, it’s the jurors who are sworn to secrecy, but in John Does, the targets are muzzled, too. It’s that aspect that’s proved crippling to the conservative activists, who’ve been unable to explain the situation to potential donors and partners.
After Walker was elected governor, the local prosecutors convinced a rubber-stamping judge to approve a special prosecutor with statewide jurisdiction, while they continued to run things from Milwaukee, according to court filings. Schmitz, the figurehead, “admitted in court papers that he has not applied for any of the subpoenas, subpoenas duces tecum, or search warrants in this matter, and that he has not appeared before the John Doe judge to take oral testimony,” according to an unsealed plaintiffs brief. “Schmitz’s phone number is a Milwaukee County District Attorney’s Office phone number, indicating that this Office remains the headquarters of the investigation. In fact, the orders appointing Schmitz specifically authorize the same district attorneys and staff members who wanted to avoid the appearance of impropriety (including Defendants) to carry out the day-to-day work of the investigation, and, on information and belief, they still maintain effective control over the investigation.”
By Jan. 2012, prosecutors had filed all the charges they were ever going to file. Two Walker aides were convicted over the charity embezzlement. The boyfriend of one of them, whose iPhone was seized during a raid, was convicted of a misdemeanor over some dirty pictures he’d traded with a twink. There were also convictions of the staffer who liked to comment and another who failed to walk outside her government office while handling some political matters. A businessman who’d reimbursed his girlfriend for a political donation pleaded guilty, too. The only thing these violations had was some tangential connection to Walker.
Needless to say, the prosecutors have not investigated campaign coordination by the union-backed groups opposed to Walker with any vigor. The plaintiffs list more than a dozen examples, from public employees who openly campaigned for Democrats on the job (a mere “personnel matter,” according to Chisholm) to an announcement by the Committee to Recall Scott Walker that it was launching its campaign “in coordination with We Are Wisconsin, United Wisconsin,” and the Democratic Party of Wisconsin. The groups in the announcement were all run openly by union leaders. If coordination were enough to make electioneering a crime, the union leaders have admitted guilt.
In contrast, the Club for Growth and O’Keefe say that they didn’t coordinate any of their ad campaign with Walker, “and the record seems to validate that assertion,” Randa ruled, citing a point-by-point rebuttal of the prosecutors’ case. The rebuttal addresses 50 claims by the prosecution, and checks off the flaws in each. For example, almost all of the claims concern fundraising, which isn’t restricted except in the imaginations of the prosecutors. As well, 49 of those matters involve no express advocacy, which is a constitutional threshold for regulation. The 50th does, but it’s an ad by Walker’s own campaign, which is of course free to mention the virtues of Walker.
The prosecution’s tactic, which we should expect to see adopted across the nation, is to misrepresent the prohibition of a very specific sort of coordination as a ban on political coordination in general. The coordination the courts talk about is when candidates ask third parties to run ads for them. Elections law expert Benjamin Barr explains that federal court rulings “spend a lot of time discussing the fact that only a quid pro quo arrangement can rise to the level of regulable conduct permissible by the First Amendment. Common goals shared by an officeholder and organizations, pressure placed on an officeholder, a vague sense of gratitude, etc. are insufficient types of behavior to be defined as corruption and thus regulable. This is the area reformers and the modern left are now trying to expand as a means to regulate more behavior — either under the anti-corruption rubric or a new ‘electoral integrity’ theory.”
Democrats elsewhere are noticing the effectiveness of the Wisconsin prosecutors’ techniques, even though they don’t enjoy quite the carte blanche that John Doe provides. The district attorney of Oklahoma County — a Democrat, of course — has just turned a routine drug bust into a criminal investigation of a political campaign, pursuing the Wisconsin theory that coordinated fundraising is a crime.
If that’s a crime, of course, then President Obama is guilty of coordinating with Priorities USA, and Sen. Harry Reid is guilty of coordinating with Majority PAC, and just about every other politician of any significance is guilty, too. That’s what makes the accusation so irresistible to the totalitarian modern left.
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