Federal judge stops John Doe prosecutors from bothering conservative group

By M.D. Kittle | Wisconsin Reporter

MADISON, Wis. – A federal judge ruled Tuesday prosecutors involved in a politically charged John Doe case may not interfere with the First Amendment rights of conservatives associated with the group Citizens for Responsible Government.

U.S. District Judge Rudolph Randa issued a preliminary injunction, telling Milwaukee County District Attorney John Chisholm and the state Government Accountability Board they may not enforce a controversial section of Wisconsin campaign finance law.

The ruling was a win for conservatives who say Milwaukee County District Attorney John Chisholm, a Democrat, and the GAB have used Wisconsin election laws to stop them from participating in state campaigns.

In issuing the injunction, U.S. District Judge Rudolph Randa said his urgent action was required.

“In light of the important constitutional issues at stake, the Court agrees that CRG’s proposal is the appropriate procedure to follow under such unusual circumstances,” he wrote. “The general election is only three weeks away. Any further delay threatens to negate the effectiveness of CRG’s requested relief.”

That means CRG may discuss policy issues with an elected official or candidate without the threat of a lengthy and invasive criminal investigation, like the ongoing John Doe investigation Chisholm launched against dozens of conservative organizations in 2012, and another politically charged John Doe in 2010. The judge also ruled that Chisholm and the GAB must respond to the motion for the injunction by Oct. 21, denying as “moot” their motion for an extension.

Ironically, it is Brian Hagedorn who is charged with securing private legal services for Chisholm and other defendants in the case. Hagedorn is general counsel for Republican Gov. Scott Walker – who Chisholm has tried to bring down through the two extended John Doe investigations. Hagedorn will select defense counsel because the Wisconsin Department of Justice refused to defend Chisholm and the GAB in CRG’s lawsuit, describing their legal position as “tenuous.”

Hagedorn asked Randa to reconsider a previous order to expedite the briefing schedule on the CRG case “until such a time as counsel is retained for the defendants.”

GAB spokesman Reid Magney said the agency will discuss its options with its attorneys. Attorneys for Chisholm have repeatedly failed to return phone calls from Wisconsin Reporter seeking comment.

CRG had asked the court to intervene before the Milwaukee-based advocacy group launched its “Take Charge Wisconsin” campaign, a web-based initiative highlighting the stories of ordinary citizens who have served in public office and the “problem of government waste in the hands of career politicians.”

“As part of this project, CRG identified three citizen candidates who are advancing CRG’s policy goals of fiscal responsibility through participatory democracy: Kim Simac, Carl Pettis, and Jason Arnold.

Simac is a Vilas County supervisor and was a Republican candidate for state Senate in the 2011 recall elections. Pettis serves on the Waukesha County Board, and “Red” Arnold is running for state Senate.

“Today’s decision vindicates the right of all Wisconsin citizens to work with their elected representatives to advance shared policy goals,” said David B. Rivkin Jr., legal counsel to Citizens for Responsible Government Advocates.

Rivkin said the defendants’ “open-ended legal theory is incompatible with the First Amendment and is a recipe for biased enforcement of the law, just like in the John Doe probe.”

Rivkin’s firm, Baker Hostetler LLP, also represents Eric O’Keefe and the Wisconsin Club for Growth, among the 29 conservative organizations targeted by Chisholm, a Democrat, with the assistance of the GAB.

CRG’s campaign, according to Rivkin, is an issue-advocacy effort, meaning it does not endorse or oppose a particular candidate for election. Issue advocacy – unlike direct or express advocacy of candidates – is staunchly protected under the First Amendment and affirmed by the U.S. Supreme Court.

Such political speech also was defended in a May ruling by the U.S. Court of Appeals for the 7^th Circuit. The ruling, known as Barland (II), was a judicial smackdown of state law and the GAB’s enforcement of it. The 7^th Circuit declared unconstitutional portions of Wisconsin campaign finance law restricting issue advertising.

In a 3-0 decision, the court found the state’s ban on political spending by corporations limited free speech, and was therefore unconstitutional under the U.S. Supreme Court’s 2010 Citizens United. The appeals court returned the case to the district court to issue a permanent injunction consistent with the opinion.

The 7^th Circuit ruled that the state statute on “political purposes” and the regulatory definition of “political committee” were unconstitutionally vague and overbroad.

Chisholm and other defendants in the case have based their investigation on a “legal theory” that “coordination” with a candidate for office to produce ads or messages on policy issues is a violation of the campaign finance law – if the speech was, the say, intended to influence the election. That’s the case, say the prosecutors, even if an organization doesn’t specifically advocate for or against a candidate.

But the court wrote that, where political speakers other than candidates, their campaign committees and political parties are concerned, the definitions are limited to express advocacy.

That hasn’t stopped Chisholm, his fellow prosecutors and the GAB from attempting to evade the 7^th Circuit’s ruling, as evidenced by the prosecution’s push to resume the John Doe probe into conservatives, according to Rivkin.

The John Doe probe has operated under the prosecutors’ belief that the conservative issue advocacy groups may have illegally coordinated with the campaign of Walker during the state’s bitter recall season of 2011 and 2012.

Randa, the district court judge, found that legal theory “simply wrong” in his previous ruling, and shut down the probe. So did presiding John Doe Judge Gregory Peterson, who in January quashed several of subpoenas in the investigation because prosecutors had failed to show probable cause that a crime had been committed.

“The First Amendment exists precisely to stop government officials from threatening citizens who want to speak out and hold government accountable,” Rivkin said, following Randa’s ruling Tuesday.