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OPINION
OPINION
How Wisconsin Prosecutors Became Campaign Partisans
Their raids on conservatives have chilled political speech and amount to a huge donation to Democrats.
Sept. 19, 2014 6:53 p.m. ET
Last year Wisconsin prosecutorsat the behest of Milwaukee's Democratic District
Attorney John Chisholm launched a secret criminal investigation involving almost
every conservative advocacy group in the state. Armed law-enforcement personnel
executed pre-dawn searches of the homes of consultants for the Wisconsin Club for
Growth. The organization had engaged in "issue advocacy"running ads that do not
call for the election or defeat of a candidateboth before and during the extended
cycle of recall elections for state officials following Gov. Scott Walker's collective-
bargaining reforms in 2011. At the same time, subpoenas were directed to
approximately 30 other conservative advocacy organizations and their bankers and
accountants.
The investigation has been stopped by a preliminary injunction in O'Keefe v. Chisholm,
and it is the subject of legal wrangling in state and federal courts, but if Mr. Chisholm's
efforts were politically motivated, then he can already claim victory. As midterm
elections near, Wisconsin conservative groups have been sufficiently intimidated amid
the uncertain legal climate, or their money has been so depleted by courtroom fights,
that they are not the force in the state that they were in 2012.
As the Milwaukee Journal Sentinel reported on Sept. 14, Gov. Walker's campaign was
outspent in television advertising by his Democratic challenger, Mary Burke, thanks in
part to donations from the Greater Wisconsin Committee, "an anti-Walker group
heavily funded by organized labor." Ms. Burke's spending advantage is a remarkable
contrast with the 2012 recall fight, when Gov. Walker enjoyed strong conservative
backing and was better funded than his opposition. A recent editorial in these pages
noted that the Wisconsin Club for Growth's political fundraising has been suspended
and the group "hasn't run a single ad in this election cycle."
Campaign-finance lawyers often say that the process is the punishment, and that has
certainly been the case in Wisconsin. I have witnessed it first-hand as my
organization, the Wisconsin Institute for Law & Liberty, consults with many
conservative advocacy groups across Wisconsin.
After the raids became public knowledge,
the prosecutors claimed that they were
investigating allegations that the
Wisconsin Club for Growth and other
groups had illegally "coordinated" their
speech on political issues with Gov.
Walker's campaign in violation of the
state's baroque and often inscrutable
campaign finance laws. The investigators
seized sensitive and highly confidential
records of a good part of the state's
conservative infrastructure.
The investigation was conducted under the state's peculiar John Doe procedurean
Milwaukee County District Attorney John Chisholm at
a 2012 news conference. Associated Press
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inquiry that is held in secret and in which those being investigated are subject to a gag
order. The targets of the raids were told that they could not tell the public what was
being done to them.
This inquiry is likely to lead to little or nothingjust as Mr. Chisholm's earlier three-
year probe into Mr. Walker's tenure as Milwaukee County executive led to only a few
minor prosecutions. Both state and federal judges have rejected the prosecutors'
theory regarding the illegality of the Wisconsin Club for Growth's activities, but the
district attorney continues to press his case. O'Keefe v. Chisholm is the group's effort,
now in the U.S. Seventh Circuit Court of Appeals, to stop the probe.
Members of Wisconsin conservative advocacy groups tell me that they are reluctant to
speak out on the issues, and that donors are wary of donating, when the price may be
having their house ransacked and their private affairs dragged into court cases. The
fact that these people asked for anonymity when speaking with me is indicative of how
successful Mr. Chisholm has been in discouraging conservative speech in Wisconsin.
A conservative acquaintance who is a longtime political donor told me that he backed
off giving money to the organizers of a political rally because candidates for office
were going to speak at the eventhe feared that his donation would have left him
open to legal trouble for having "coordinated" messaging with the candidates. I note
that Mary Burke recently spoke at "Fighting BobFest," a liberal-issues rally sponsored
by two Madison-area media companies that apparently felt unworried about getting on
the wrong side of prosecutors.
Courts have long recognized that political speech is fragile and can be chilled by laws
that are too broad and regulators who are overly zealous. Potential speakers in
Wisconsin are now well aware of the prosecutors' strong-arm tactics. In the event that
the state Supreme Court finally rules on Mr. Chisholm's appeal, the possibility that his
investigation would be restarted leaves them fearful of being next on his list. This is a
sorry state of affairs: Both the right to speak on issues and to speakeven to
"coordinate"with elected officials about those issues is constitutionally protected.
Illegal coordination must be narrowly and clearly defined, but Wisconsin law doesn't do
that, and the prosecutors have taken full advantage of the law's vagaries.
In the meantime, because details of the prosecutors' investigation remain secret, both
the media and liberal partisans have been free to speculate about what is happening
aided by documents that have leaked or been selectively released for legal reasons.
None of them reflect illegal activity by the governor or the targeted groups, but the
local press is deeply invested in the idea that there must be a story somewhere. It
pounces on each detail. Because campaign-finance law is extraordinarily complex,
some voters will interpret a headline as proof that someone must have done
something wrong. And that's the whole idea. In Wisconsin, criminal lawwielded
selectively and aggressivelyhas become a political weapon.
Mr. Esenberg is the president and general counsel of the Wisconsin Institute for Law &
Liberty. The group filed an amicus brief in O'Keefe v. Chisholm.
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You're commenting as Eric O'Keefe. 132 people watching.
james hankins
Unfortunately, the only way to stop people like this is to do the same to them. You
can't appeal to their civic conscience, because they don't have one. Republican
prosecutors should start harassing big Emily's List donors, Moveon.org, ActBlue,
the trial lawyers etc., in Wisconsin, to chill them out a bit. Then we might arrange a
truce or even get some reform.
13 minutes ago
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Prashant Rao
Democrats have adopted Stalin's "Show me the man and I will find you his crime"
approach to governing power in the land of the free and the home of the brave.
Jo Gregg
Everywhere you look, Democrats are destroying America.
Our freedoms are being trampled. Our own tax dollars are being used to
Democrats' political advantage, and against us.
There is no evidence of morality or ethical consideration or respect for due process.
Democrats are increasingly morally bankrupt. The Democratic Party is collectively
suffering from moral collapse. We see it all over the country, especially in
Washington DC.
What are these people thinking? When we see the misery in every American inner
city, the many millions of Americans who live lives plagued with extreme violence,
crime, drugs, terrible schools, where are the ends that we are so endlessly told, will
justify these means?
The only consistent outcome, is the empowerment and enrichment of a tiny handful
of political leaders who enjoy imperial lifestyles as they hypocritically speak of
Utopian fantasies that have never materialized.
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