First Amendment big guns back targets of John Doe probe

Posted: Sep 04, 2014 9:18 AM
First Amendment big guns back targets of John Doe probe
Part 115 of 115 in the series Wisconsin's Secret War

By M.D. Kittle | Wisconsin Reporter

MADISON, Wis. — Some of the sharpest First Amendment minds in the country are weighing in on a Wisconsin-based civil rights case that is testing the boundaries of prosecutors’ power and the protections of free speech.

In advance of next week’s oral arguments before the 7th Circuit U.S. Court of Appeals, at least five former Federal Election Commission members, including four former chairpersons, have filed amicus briefs with the court in support of the conservative targets of a sweeping and politically charged John Doe investigation.

The commissioners, including Lee Ann Elliott, David Mason, Hans von Spakovsky, Darryl Wold and Bradley Smith, have submitted two requests to intervene in the appeal, sought by John Doe prosecutors, now defendants in a civil rights lawsuit filed by conservative activist Eric O’Keefe and the Wisconsin Club for Growth.

Center for Competitive Politics

BRADLEY A. SMITH: Former Federal Election Commission chairman and one of the nation’s foremost experts on the First Amendment and campaign finance laws is coming to the defense of conservatives targeted in a secret John Doe investigation.

At stake, the commissioners claim, is nothing short of the sanctity and the safeguarding of the First Amendment and its protections of political speech and association.

Smith’s brief, filed by the Milwaukee-based Institute for Law & Liberty, specifically urges the 7th Circuit to uphold a lower court’s preliminary injunction that shut down the secret probe into dozens of conservative groups.

The other commissioners “urge the Court to ensure that the public’s right to engage in issue advocacy, including coordinated issue advocacy, is protected at the state level no less than at the federal level.”

“Neither the Supreme Court nor this Court has ever endorsed such invasive, open-ended investigations of issue advocacy,” the former FEC members state in their brief, referring to the investigation, launched in August 2012 by Milwaukee County District Attorney John Chisholm, a Democrat.

“The investigations at issue in this case strike at the very heart of one of the First Amendment’s “core” protections: the right to speak freely on political issues,” the commissioners argue.

O’Keefe and other critics of the serpentine probe have accused the prosecutors of conducting a partisan witch hunt, retaliation for the political successes and an outright politically motivated assault on Republican Gov. Scott Walker. The probe has featured what sources have described as predawn, “paramilitary-style” raids on the homes of targets, the issuance of scores of subpoenas and the seizure of property, including reams of emails and other documents through widespread Internet Service Provider searches.

O’Keefe and the club have won several legal victories since filing their complaint in February, most notably U.S. District Court Judge Rudolph Randa’s order in May halting the investigation and denying prosecutors’ motions to dismiss the lawsuit.

Those rulings are what the defendants — Chisholm, two of his assistant DAs, John Doe special prosecutor Francis Schmitz and a contracted investigator — are hoping the 7th Circuit overturns.

The prosecutors and their debunked “theory” that 29 conservative groups may have illegally coordinated with Walker’s campaign during Wisconsin’s partisan recalls are getting backup from two left-leaning “dark money” conspiracy theorists.

The Campaign Legal Center and Democracy 21 have filed amicus briefs with the 7th Circuit.

CLC, a 501(c)(3) nonprofit, is an ardent advocate of campaign finance reform, viewing the U.S. Supreme Court’s landmark Citizens United ruling that expanded political speech and eroded McCain-Feingold as a mortal sin.

The organization, which has gotten a big chunk of its funding from groups funded by George Soros, the multibillionaire sugar daddy of liberal causes, has teamed up with Democracy 21 in rallying the Internal Revenue Service to change the laws governing the eligibility of 501(c)(4), or social welfare groups. Perhaps preemptively, the IRS, as has been well documented, has targeted mostly conservative 501(c)(4) organizations and applicants, singling them out for additional scrutiny and delays.

The nonprofits turn their guns again against Wisconsin’s conservative nonprofits, arguing, as the prosecutors have, that long-protected “issue advocacy” transforms into the more regulated “express advocacy” if the players involved are coordinating with the candidate, in this case Walker. Such coordination, they charge, amounts to an illegal in-kind or “disguised” contribution.

But the four former commissioners in their amicus brief argue the supporters of expanded regulation on speech miss the broader implications of well-established Supreme Court cases such as Buckley v. Valeo.

The 1976 ruling, and subsequent decisions, including the landmark Citizens United in 2010, demands that federal campaign finance law draw a “sharp line between ‘contributions’ and ‘independent expenditures,’” the commissioners write. “(T)he former can be regulated to guard against quid-pro-quo (such as a political favor for a contribution) corruption, while the latter present no equivalent risk of corruption and thus enjoy maximum constitutional protection, even when the expenditures fund ‘express advocacy’ for or against a candidate.”

Advocates of restricting issue ads have based their arguments on court cases that predated such decisions as the 2007 Federal Election Commission v. Wisconsin Right to Life, Inc., which declared there is no compelling interest justified in the regulation of such ads.

The John Doe prosecutors and their defenders, critics charge, have based their investigations and their advocacy for limits on issue ads on laws they would like to see enacted, not laws that exist.

The prosecutors “unbounded, invasive regulatory environment offers would-be policy advocates a stark choice: either forego all contact with one’s elected officials and other candidates, or forego independent issue advocacy, or risk ruinously expensive and intrusive litigation,” the former FEC commissioners argue.

Rick Esenberg, president and general counsel of Wisconsin Institute for Law & Liberty, representing former FEC Chairman Bradley Smith and conservative nonprofit groups Citizens for Responsible Government and Wisconsin Family Action, says the chilling effect on speech comes when regulators — or, in this case, prosecutors — attempt to place broad, vague limitations on issue advocacy.

And such vague, “labyrinthian” regulations are precisely what the 7th Circuit found in striking down portions of Wisconsin’s campaign finance law.

“Wisconsin law lacks a constitutionally adequate definition of coordination, creating a trap for the unwary and improperly chilling protected speech and association” Esenberg said. “These John Doe investigations — including paramilitary pre-dawn raids normally reserved for drug kingpins — deter our clients and other conservative groups from speaking on public issues, violating their First Amendment rights.”

The former FEC commissioners are some of the leading First Amendment experts in America.

Lee Ann Elliott was a member of the FEC from 1982 to 2000, and she was its chairwoman in 1984, 1990 and 1996.

David Mason served as FEC member from 1998 to 2008, and chaired the commission in 2002 and 2008.

Hans von Spakovsky was a commissioner from 2006 to 2007. Darryl Wold served from 1998 to 2002, and he was its chairman in 2000.

Smith, who is Visiting Copenhaver Chair of Law at West Virginia University, was nominated to the FEC by President Clinton in 2000 and served for five years, including as chairman in 2004. He has written extensively on the chilling effect vague and overly broad campaign finance regulations can have on core political speech, according to WILL.