Three years ago, a group of ambitious and partisan district attorneys convened a special kind of investigation to target and punish conservatives. This week, the Wisconsin Supreme Court held that investigation was unconstitutional and unmoored from both reason and law. The legal theories underlying the Wisconsin high court’s decision are important, but before we consider them, we must recognize the human cost of this litigation and the politics that animated public officials’ attacks on conservatives for engaging in free speech.
Some district attorneys in Wisconsin were disappointed by the failure of a prior John Doe investigation to derail Wisconsin’s union reform law, incensed by the unsuccessful recall election of union-busting Gov. Scott Walker, and cognizant that Walker’s next election campaign was about to start.
Unlike the normal criminal investigative process, however, these district attorneys employed Wisconsin’s so-called John Doe law, which grants extreme power to a special investigator to compel evidence and—more importantly—keep his investigation secret from targets and from the public. Their legal theory in this case was that Walker and other candidates had illegally coordinated their campaigns with outside issue-advocacy groups.
Like so many villains, the John Doe II investigators went about their dirty business under cover of darkness. Nighttime raids by SWAT-equipped police squads turned homes and lives upside down. Computers and cellphones and all the personal documents and private information contained therein were seized and thereafter withheld from their proper owners. From the outside groups, investigators demanded membership lists and financial information. For all the targeted victims, the raids and subpoenas came with a sharp, horrifying warning: tell no one.
A Pretext for Punishing Political Enemies
We are fortunate that some of the victims of this process chose to fight back. Political activist Eric O’Keefe and the Wisconsin Club for Growth deserve special commendation for coming forward first. Others joined them, and in the course of the last few years multiple state courts and one federal court put the investigation on hold. The John Doe investigators’ actions could not withstand the light of day. As one judge put it, “the investigation was commenced and conducted without a reasonable expectation of obtaining a valid conviction.” The investigation was just a pretext to use the power of the state to punish conservatives and smear Republican candidates.
The Wisconsin Supreme Court laid bare this pretext, noting both that “the basis for [the John Doe special prosecutor’s] theory has evolved over the course of the various legal challenges to his investigation” and that his theory of the election law was so broad it “would require an individual to surrender his political rights to the government and retain campaign finance attorneys before discussing salient political issues.” Naturally, the investigators’ theory was abhorrent to both the First Amendment of the U.S. Constitution and to the Wisconsin Constitution’s Article 1, Section 3 analog.
Liberal attacks on free speech in the context of election law are nothing new. They proceed from a vague proposition that money in politics is bad, but repeatedly run afoul of a bedrock principle of constitutional law: political speech is among the core freedoms that governments may not tread upon. For that reason, both state and federal courts have required that government restrictions on political speech, including the ability to pay for political speech, must survive strict scrutiny.
The Court Praises Citizen Whistleblowers
The ultimate theory of the John Doe investigators was that election campaigns, which are heavily regulated to avoid public corruption (or the appearance of corruption), were illegally coordinating with outside issue-advocacy groups, which, because of free-speech protections, are not regulated to the same degree. But that goes too far. Under both the U.S. and Wisconsin constitutions, the state cannot regulate issue advocacy, which does not expressly call on voters to defeat or elect a specific candidate, as if it were express advocacy. If the John Doe investigators’ theory prevailed, it would allow aggressive district attorneys (ahem) to silence outside political organizations whose messages they disagree with based on the Orwellian idea that doing so protects the political process.
The Wisconsin Supreme Court recognized this unconstitutional impulse: “the special prosecutor completely ignores the command that, when seeking to regulate issue advocacy groups, such regulation must be done with ‘narrow specificity.’” The high court was highly critical of the John Doe investigation, as befits the disposal of the extreme theory that the state may use nighttime raids and gag orders to investigate constitutionally protected speech. In what was probably the most unusual part of the decision, the majority opinion lauded the innocent victims, like O’Keefe and Club For Growth, for having the guts to fight back:
[T]he special prosecutor has employed theories of law that do not exist in order to investigate citizens who were wholly innocent of any wrongdoing. In other words, the special prosecutor was the instigator of a ‘perfect storm’ of wrongs that was visited upon the innocent Unnamed Movants and those who dared to associate with them. It is fortunate, indeed, for every other citizen of this great State who is interested in the protection of fundamental liberties that the special prosecutor chose as his targets innocent citizens who had both the will and the means to fight the unlimited resources of an unjust prosecution. Further, these brave individuals played a crucial role in presenting this court with an opportunity to re-endorse its commitment to upholding the fundamental right of each and every citizen to engage in lawful political activity and to do so free from the fear of the tyrannical retribution of arbitrary or capricious governmental prosecution.
The John Doe Saga Isn’t Over
The Wisconsin Supreme Court concluded by commanding that the John Doe II prosecution end, but the story is not over. Two major issues remain.
First, the John Doe investigators could try and revive their case by appealing to the U.S. Supreme Court. They cannot overturn on the merits because the Wisconsin Supreme Court ruling is based on the state constitution, in addition to the U.S. Constitution. However, they can bog things down on a side issue: they believe that four Wisconsin Supreme Court justices should have recused themselves from the case because, years ago, some of the victim groups supported their election campaigns. (In Wisconsin, Supreme Court justices are elected.) That’s a stretch under Supreme Court precedent and unlikely, given that the Supreme Court takes so few cases. It is, however, a possibility that should be kept in mind.
Second, the victims are still seeking damages from the partisan investigators who disrupted lives and stomped on civil rights. An earlier federal lawsuit was dismissed by the Seventh Circuit Court of Appeals as premature since state proceedings were ongoing. In that decision, Judge Easterbrook also said state officials should be immune from lawsuits on the theory that it was not clearly established law that issue advocacy cannot be transformed into express advocacy by coordination with campaigns.
Cindy Archer, a former advisor to Gov. Walker who was also victimized by the John Doe II investigators, has filed a new civil suit in the federal courts that will test that proposition. I would expect more victims to join that lawsuit now that the Wisconsin Supreme Court has resolved the state law issues. There must be a reckoning for using the power of the state to abuse people engaged in lawful political speech. Stopping the abuse is only the beginning. Those who gleefully misused the power of the state to hurt their political opponents must answer for their thuggery.