John Doe froze conservative speech, targets say

By M.D. Kittle | Wisconsin Reporter

MADISON, Wis. — Critics say Milwaukee County District Attorney’s John Chisholm’s investigation of Wisconsin conservatives was always aimed at disrupting the campaigns of Gov. Scott Walker and other state Republicans.

Now, even reflecting on the wave of Republican victories in this month’s general election, targets of the investigation say the probe worked, effectively chilling conservative donors and volunteers.

“We spent, but we didn’t spend like we did in the last couple of cycles, and I believe a good part of that was related to the John Doe investigation,” one source, whose organization has been targeted in the politically charged probe, told Wisconsin Reporter this week.

The source spoke on condition of anonymity, because, like many other targets, she still can’t say for sure whether she could go to jail for speaking publicly about the investigation, launched in August 2012 by Chisholm, a Democrat.

Another target of the investigation told Wisconsin Reporter that some donors took a pass this election cycle but that it is difficult to calculate the impact of the investigation on spending.

“Our side had what it needed and outside of the governor’s race, the left had very few players on the field,” said the source, who also asked not to be identified for fear of reprisal.

The conservative Citizens for Responsible Government took the unusual step of asking a federal judge in October for permission to discuss policy issues with elected officials or candidates without the threat of a lengthy and invasive criminal investigation.

That’s the ultimate chilling effect, and John Doe targets tell Wisconsin Reporter the court-ordered gag order binding conservatives and the dark cloud of suspicion over them cut off the pipeline of volunteers and donations to push for issue advocacy.

“We work cooperatively, not illegally, with like-minded groups. When their sources shut off, some of our sources shut off,” an activist said. “I think you can attribute the drop-off to the chilling effect of John Doe.”

Eric O’Keefe, a director of the Wisconsin Club for Growth, is the only John Doe target who has openly defied the gag order and spoken publicly. O’Keefe and the club have sued Chisholm, two of his assistant DAs, John Doe special prosecutor Francis Schmitz, and Dean Nickel, an investigator contracted by the state Government Accountability Board, alleging the prosecutors grossly violated the conservatives’ civil rights — chief among them, their First Amendment right of speech.

The Wisconsin Club for Growth, which had been extremely active in issue advocacy during previous election cycles, did not spend anything on issues ads of any kind in 2014, O’Keefe told Wisconsin Reporter this week. The organization continued to publish its e-letter and did some advertising on Right Wisconsin, an online conservative news source, but that was it.

“So we were silent for the only time in our 10-year history,” O’Keefe said.

The damage to the First Amendment, he added, could be long-term.

“It is not clear yet whether we should ever resume issue advertising, as our brand has been redefined by the John Doe propaganda that calls in question its likely effectiveness as a voice of persuasion,” he said.

Chisholm and his fellow prosecutors have repeatedly declined to comment, or have not returned requests for comment.

The John Doe probe turned into an unprecedented, multi-county campaign finance shakedown featuring predawn, paramilitary-style raids at the homes of conservative targets in October 2013. The prosecutors, with the assistance of the GAB, according to court documents, alleged that the conservative groups may have illegally coordinated with Walker’s campaign during Wisconsin’s partisan recall season.

According to court documents, Chisholm and his fellow prosecutors hold that “issue advocacy” (political communications supporting or attacking ideas but not candidates) is effectively “express advocacy” (advertisements that directly support or oppose a political candidate) if there is coordination between a special-interest group (like the Wisconsin Club for Growth) and a candidate (like Walker).

A federal judge called that interpretation “simply wrong.” John Doe presiding Judge Gregory Peterson tossed out several subpoenas because, he said, the prosecutors failed to prove probable cause that a crime was committed.

O’Keefe contends the idea wasn’t about guilt or innocence. It was about stifling conservative speech.

“The ‘investigation’ was exclusively political from inception,” he said. “My (legal) team still speculates on whether any leading conspirators on the prosecution side believed they would ever get any convictions. We think the top people thought they would at most get some plea deals from operatives.”

But the expected political benefits to the prosecutors and their allies were priceless, O’Keefe said. In confiscating and subpoenaing documents from conservative activists, the prosecutors obtained extensive information about political operations of conservatives in Wisconsin and nationally, including donor lists for the Wisconsin Club for Growth.

They planned to subpoena not only operatives and vendors, but donors to the club and possibly other organizations, according to a court document signed by a Milwaukee County DA investigator.

Peterson’s ruling nearly a year ago effectively put the investigation on hold while state courts sort out a bevy of litigation.

“They would have conducted dozens, or more likely hundreds, of forced or ‘voluntary’ interviews over a period of many months, diverting attention and resources on our side, while learning more,” O’Keefe said. “They never intended a ‘secret’ investigation. They intended to cripple the targets and allies.

“Their goal was to so impair our political operations that their Democratic Party friends and allies would win elections. But they expected the dividends of learning the details of our operations. And given the way the earlier phase of the Milwaukee Doe went, they had reason to expect the Doe judge to sign off on any extension they wanted, so they could fish for any offense of any kind of law,” O’Keefe said, referring to Chisholm’s earlier John Doe probe into former aides and associates of Walker when Walker was Milwaukee County executive.

Still, as the political smoke clears from this month’s election, it appears spending by and for Republicans edged out spending for Democratic candidates in Wisconsin.

Big labor and liberal special-interest groups such as the Greater Wisconsin Committee dumped millions of dollars into the left’s failed campaign to topple Walker, who beat his Democratic challenger Mary Burke by 6 percentage points.

But conservative organizations such as the Republican Governors Association dropped in at least $8 million on Walker’s behalf, according to a review by the Washington Post.

Stepping up to fill the void of conservative spending was the Wisconsin Manufacturers & Commerce Mobilization Committee, which hit the airwaves hard in the final months of the campaign.

A federal judge ended up helping both parties in September when he ruled that it is unconstitutional for the state to continue to bar large contributions to the state GOP or the Democratic Party of Wisconsin.

But the speech freeze could be felt in many conservative quarters, O’Keefe and others said.

While conservative groups were shut out from spending private money to highlight the flaws of public officials, O’Keefe said the prosecution spent untold amounts of taxpayer money “secretly spying on our operations for many months.”

“There is much left to learn and disclose about their operation,” he said.