Election Law

Citing First Amendment, federal judge shuts down Wisconsin probe of coordinated campaign spending

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A federal judge has issued a preliminary injunction shutting down an investigation of alleged campaign spending violations by Wisconsin Gov. Scott Walker’s campaign and conservative groups during recall elections.

Citing the First Amendment right to political speech, U.S. District Judge Rudolph Randa of Milwaukee ruled (PDF) on behalf of the Wisconsin Club for Growth, its treasurer and other plaintiffs seeking a halt to the probe, the Milwaukee Journal Sentinel reports.

“The plaintiffs have found a way to circumvent campaign finance laws, and that circumvention should not and cannot be condemned or restricted,” Randa said. “Instead, it should be recognized as promoting political speech, an activity that is ‘ingrained in our culture,’ ” Randa wrote, quoting from a recent U.S. Supreme Court decision.

Randa said government cannot regulate groups that engage in “issue advocacy,” which doesn’t urge a specific vote for or against a candidate. He cited the Supreme Court’s decisions in Citizens United and McCutcheon, a ruling issued last month eliminating aggregate limits on campaign spending by individuals.

Prosecutors had contended the Wisconsin Club for Growth must abide by fundraising limits and report spending on behalf of Walker because it was acting as a subcommittee of Walker’s campaign. The prosecutors said the coordination transformed the club’s issue advocacy into express advocacy, an argument dismissed by Randa as “interpretative legerdemain” lacking analysis of why this would translate to quid pro corruption that can be pursued by prosecutors.

“The defendants are pursuing criminal charges through a secret John Doe investigation against the plaintiffs for exercising issue advocacy speech rights that on their face are not subject to the regulations or statutes the defendants seek to enforce,” Randa said.

Randa’s injunction requires prosecutors to return all property seized in the probe and to destroy evidence collected, according to the Journal Sentinel and the New York Times.

Special prosecutor Francis Schmitz told the Journal Sentinel he would appeal.

Randa said five counties were conducting the investigation of a campaign consultant who advised the Wisconsin Club for Growth in its support for a bill limiting collective-bargaining rights for public unions. Subpoenas were issued around the country in the so-called John Doe probe, an investigation overseen by judges in which prosecutors compel people to produce documents and testify without disclosing the investigation.

“Defendants instigated a secret John Doe investigation replete with armed raids on homes to collect evidence that would support their criminal prosecution,” Randa wrote. “Sheriff deputy vehicles used bright floodlights to illuminate the targets‘ homes. Deputies executed the search warrants, seizing business papers, computer equipment, phones and other devices, while their targets were restrained under police supervision and denied the ability to contact their attorneys.”

The club’s accountants and directors received subpoenas that could not be disclosed to the public. “The subpoenas’ list of advocacy groups indicates that all or nearly all right-of-center groups and individuals in Wisconsin who engaged in issue advocacy from 2010 to the present are targets of the investigation,” Randa said.

“Ultimately, and perhaps most importantly, the timing of the investigation has frustrated the ability of WCFG and other right-leaning organizations to participate in the 2014 legislative session and election cycle.”

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