Conservative group asks court to stop John Doe ‘constitutional injury’

Part 132 of 132 in the series Wisconsin’s Secret War

By M.D. Kittle | Wisconsin Reporter

MADISON, Wis. – Pleading for quick action so that conservatives can participate in the Nov. 4 general election, a Milwaukee-based group on Tuesday asked a U.S. district court to stop Democrat Milwaukee County District Attorney John Chisholm and the state Government Accountability Board from enforcing a constitutionally dubious state campaign finance law.

“Wisconsin citizens have a First Amendment right to work with their elected officials and candidates for office to advance shared policy goals,” David B. Rivkin, Jr., counsel to Citizens for Responsible Government, said in a statement. “But that hasn’t stopped John Chisholm and the GAB from attempting to criminalize participation in the political process.”

The group’s urgent request is before U.S. District Court Judge Rudolph Randa, the same federal judge who temporarily shut down Chisholm’s secret John Doe investigation into dozens of conservative groups. Randa also allowed conservative activist Eric O’Keefe to proceed with his federal civil rights lawsuit against Chisholm and fellow prosecutors.

DEFENDING THE AMENDMENTS: Citizens for Responsible Government, a Milwaukee-based conservative advocacy group, is asking a federal court to protect its First Amendment right to ‘work with their elected officials and candidates for office to advance shared policy goals.’

Citizens for Responsible Government asks the court 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 Chisholm launched in 2012.

Rivkin’s firm, Baker Hostetler LLP, also represents 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 is a 501(c)(4) social-welfare organization engaged in issue advocacy in support of limited government and private property rights.

The group is preparing to launch a website called “Take Charge Wisconsin.” The initiative, which will include broadcast and print ads, aims to encourage participatory democracy, discourage the maintenance of a “professional political and bureaucratic class,” and to demonstrate through examples of specific candidates and officeholders that conscientious citizens can make a difference in Wisconsin public policy.

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, different from direct or express advocacy of candidates, is staunchly protected under the First Amendment and affirmed by the U.S. Supreme Court.

It also was defended through a ruling in May by the U.S. Court of Appeals for the 7th Circuit. The ruling, known as Barland (II), was a judicial smackdown of state law and the GAB’s enforcement of it. The 7th 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. That hearing is slated for next week.

The 7th Circuit ruled that the state statute on “political purposes” and the regulatory definition of “political committee” were unconstitutionally vague and overbroad. The GAB, granted the authority interpret the law, effectively could massage the language as it saw fit and apply intention to any interest group. The court wrote, however, that as applied to political speakers other than candidates, their campaign committees and political parties, the definitions are limited to express advocacy.

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

Chisholm and crew 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 intended to influence the election. That’s the case, say the prosecutors, even if an organization doesn’t advocate for or against a candidate.

The John Doe probe has operated under the prosecutors belief that the conservative issue advocacy groups may have illegally coordinated with the campaign of Gov. Scott 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, when he 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.

A 7th Circuit panel last month overturned Randa’s preliminary injunction. It also stopped the civil rights lawsuit, saying that John Doe grievances are a state, rather than federal, matter.

On Tuesday, O’Keefe told midday talk show host Charlie Sykes that he will ask the full appeals court to rehear the case, saying that the First Amendment concerns transcend the panel’s federalism worries. He noted that his group’s activities are more than chilled, they are effectively frozen.

“This eight-page subpoena was not an investigatory document. This is a death warrant,” O’Keefe said on the show, which airs on AM 620-WTMJ.

“This eight-page subpoena was not an investigatory document. This is a death warrant,” he said.

CRG’s attorneys say the conservative group is likely to succeed on the merits of its case, that prosecutors and the GAB have adopted and are enforcing an “interpretation of Wisconsin law that violates the First and Fourteenth Amendments to the United States Constitution.”

GAB spokesman Reid Magney said the agency does not comment on pending litigation.

“Chisholm and GAB’s legal position is indefensible,” Rivkin said. “Their open-ended legal theory gives the government the power to target any candidate or organization in Wisconsin if they have ever communicated, raising the specter of selective and biased enforcement of the law—just like in the John Doe investigation. The result is to chill the ability of citizens to speak with their elected representatives and candidates and to criminalize participation in the democratic process.”

Last week, the state Department of Justice said it would not defend Chisholm and the GAB in the CRG lawsuit. The office described the prosecutor’s position as “tenuous.”

Still, CRG isn’t taking any chances. The advocacy group would like a court ruling before CRG is subject to the kind of secret probe fellow conservative organizations endured. And with less than one month before the 2014 general election, including a close governor’s race between Walker and his Democrat opponent Mary Burke, time is of the essence.

“CRG’s constitutional injury grows by the day, as its speech is chilled,” the group’s attorney asserts.

The motion asks the judge to expedite the standard briefing process, requesting that the defendants respond within a week, and that the preliminary injunction hearing be scheduled as soon as possible.