September 10, 2014

September 10, 2014 | Commentary on Legal Issues

John Chisholm, other prosecutors put free speech at risk in John Doe case

Oral arguments were heard Tuesday before the 7th Circuit U.S. Court of Appeals in O'Keefe vs. Chisholm, the so-called John Doe investigation in which local prosecutors in Wisconsin tried to criminalize political speech and activity on public issues. The 7th Circuit should uphold the lower court decision halting this Star Chamber investigation that violated basic First Amendment rights.

The fact that such a secret persecution of citizen advocacy organizations even occurred ought to be an embarrassment to a state that prides itself on being a progressive bastion of individual freedom. It is more reminiscent of a banana republic than the world's foremost democracy.

The case before the court involves a civil rights lawsuit filed by the Wisconsin Club for Growth, one of the targets of the investigation. The group's supposed "crime" was coordinating its efforts on public policy issues with elected officials such as Gov. Scott Walker and with other conservative advocacy organizations. This resulted in SWAT-like raids in the middle of the night by armed law enforcement officials to seize "evidence," as if these organizations were dangerous drug cartels or mob operations.

Last week, I joined three other former members of the Federal Election Commission in filing an amicus ("friend of the court") brief for the organizations unfairly targeted. Based on our extensive experience interpreting federal campaign finance law, we argue that issue advocacy is at the core of our rights to free speech, to assemble and to petition the government for a redress of grievances.

To allow an investigation of issue advocacy based simply on allegations of collaboration between elected officials and the public would chill core political speech. The right of citizens and their membership associations to directly engage elected leaders is all the more important on politically charged questions of public policy. Such collaboration is the norm in the political arena, where there is extensive interaction between citizens groups and elected officials about proposed legislation. In fact, such coordination is vital to a functioning democracy.

Under the warped view of the democratic process exhibited by the local prosecutors involved in this investigation, public officials would be strictly prohibited from speaking to the public about important public policy issues. Advocacy groups — no matter what their political persuasion — also would have to avoid any contact or discussion of issues with government officials and each other for fear of their conduct being considered criminal.

The public's right to engage in issue advocacy, including coordinated activity, cannot be limited in this way and is as protected at the state level as it is at the federal level. Wisconsin is failing to draw the sharp line that the FEC and the courts have drawn between regulating express advocacy that is intended to support or oppose particular candidates running for office and grass-roots advocacy on important public policy issues. As Bob Bauer, President Barack Obama's former White House counsel, recently said, we should "value, not distrust, collective political action and the strategies through which it is effected."

What the local prosecutors did is a classic example of the kind of behavior our brief says the Supreme Court has frowned on: "Neither the Supreme Court nor this Court (the 7th Circuit) has ever endorsed such invasive, open-ended investigations of issue advocacy." In fact, not a single decision by the U.S. Supreme Court or the 7th Circuit upholds the type of punishment of coordinated issue advocacy that Wisconsin prosecutors were pursuing. Why? Because the prosecutors were trying to punish political speech.

I hope that the civil rights lawsuit filed against these prosecutors is successful and results in a large judgment that deters this type of investigation from ever happening again. But this also should spur the Wisconsin Legislature to repeal the laws allowing such secret — and, frankly, un-American — political investigations and to get rid of campaign finance regulations that are unconstitutional and an insult to the First Amendment rights of Wisconsin citizens.

 - Hans A. von Spakovsky is a senior legal fellow at The Heritage Foundation.

About the Author

Hans A. von Spakovsky Manager, Election Law Reform Initiative and Senior Legal Fellow
Edwin Meese III Center for Legal and Judicial Studies

Originally appeared in the Milwaukee Journal-Sentinel