GAB, Milwaukee County DA bail on key provision behind war on conservatives

By M.D. Kittle | Wisconsin Reporter

MADISON, Wis. – In a court filing that one constitutional law expert calls a “stunning reversal,” the Government Accountability Board appears to concede that the “legal theory” driving the secret John Doe investigation into Wisconsin conservatives is legally “indefensible.”

A joint motion filed by both parties on Election Day in U.S. District Court in Milwaukee stipulates that a court-issued injunction preventing the accountability board and Milwaukee County District Attorney John Chisholm from enforcing a constitutionally suspect section of Wisconsin campaign finance law will remain in force.

The agreement also halts further proceedings before U.S. District Judge Rudolph Randa, while Milwaukee-based Citizens for Responsible Government Advocates, a conservative 501(c)(4) group, petitions the state Supreme Court to hear the case.

A constitutional law expert tells Wisconsin Reporter that the GAB and the district attorney have essentially “rolled over” on the merits of CRGA’s case, and that the accountability board and the DA are coming to terms with the fact that their interpretation of state campaign finance law is indefensible.

“Really this is just stunning,” said the legal expert, who asked to remain anonymous due to his proximity to the case. “A couple of months ago this is the legal theory that John Chisholm was defending to the hilt. At this point, the state has rolled over on the issue and agreed that their own conduct must be enjoined.”

Chisholm, a Democrat, two of his assistant DAs, a special prosecutor and a special investigator contracted by the GAB, were defendants in a federal civil rights lawsuit filed by conservative targets of a series of politically charged John Doe investigations spanning four years.

The probe has featured predawn, paramilitary-style raids on the homes of conservative targets and the issuance of scores of subpoenas in the prosecution’s pursuit of campaign finance violations.

The DA’s case against conservatives hinged on an unusual – as of Tuesday, indefensible – reading of state campaign law: Chisholm has tried to argue that any political speech (for example, a television ad supporting lower taxes) that might produce support for a specific candidate can be regulated if he can find evidence that the speakers coordinated with the candidate.

In the language of campaign law, the DA’s legal theory is that issue advocacy equals express advocacy, if there is coordination between outside groups. And Chisholm has used that theory to justify a search for evidence that the conservative 501(c)(4) groups illegally coordinated with Walker’s campaign during his last forced election — the big labor-led recall campaign against the governor in 2012.

Two judges, the presiding John Doe judge and Randa, have ruled that the prosecutors had provided no evidence that a campaign finance crime had been committed.

Citizens for Responsible Government Advocates last month filed a lawsuit in federal court asking for the preliminary injunction. The group wanted to establish a website advocating limited-government policies in the remaining weeks before the general election, but its members were worried the DA would target them, too.

CRGA asked Randa to protect the organization’s constitutional right to 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.

Randa agreed, and ordered the defendants not to interfere in CRGA’s advocacy activities.

The GAB and the Milwaukee County District Attorney asked Wisconsin Attorney General J.B. Van Hollen, a Republican, to represent them, but the AG’s office begged off, describing the prosecutors’ legal position as “tenuous.”

In a rare move, the state tapped a private attorney, Daniel Kelly of Waukesha, to represent the defendants in place of the AG.

Kelly declined to speak about Tuesday’s filing, but did say that the matter should be decided by Wisconsin’s courts, not federal courts.

“Our stipulation is narrow and prohibits enforcement only against CRGA while giving additional space for Wisconsin courts to address these questions authoritatively,” Kelly said, meaning other such nonprofits should not expect the same protections. But another legal source said political activists could find the same relief through similar court challenges.

One attorney close to the case tells Wisconsin Reporter that because plaintiffs have argued that the prosecutors have abused their First Amendment rights, there’s a strong likelihood that CRGA would be successful in its claims against the Government Accountability Board and Chisholm.

“Given the situation, the way I would read the statutes and the regulations, I don’t think there is any way to say (plaintiffs) don’t have the likelihood of success,” said the source, who also asked not to be identified due to his proximity to the case.

While much remains to be determined by the state Supreme Court – first and foremost whether the court will even take up the case – the statutory merits of the prosecutors’ theory will be on trial.

And that could bode well for the conservatives targeted in the John Doe probe.

As one legal source put it, the CRGA case raises the coordination issue, “but in a vehicle that does not have the baggage of the Doe cases and parties.”

The civil rights lawsuit was filed by political activist Eric O’Keefe and his Wisconsin Club for Growth in the U.S. Court of Appeals for the 7^th Circuit in Chicago. Declining to consider the merits of O’Keefe’s lawsuit, the court ruled that such controversies belong in the state court system.

Still, the state Supreme Court has sat on other cases related to the John Doe probe for the better part of a year. Some court observers have suggested that the high court has delayed action until after the November election because of conflicts of interest of most of the justices, on a court with a 4-3 conservative majority.

The two sides in the CRGA case sound hopeful that Randa will sign off on the agreement by the end of next week.

“Our hope is that over the next several months this litigation will be able to resolve that issue (the state’s coordination theory) so that people will be able to fully exercise their First Amendment rights,” said Andrew Grossman, attorney for Washington, D.C.-based BakerHostetler LLP, the Washington, D.C.-based firm representing CRGA, as well as O’Keefe and the Wisconsin Club for Growth.

Grossman declined to speak further about the case.