For the Walker-hating left, John Doe is ‘Mission Accomplished’

Part 66 of 67 in the series Wisconsin’s Secret War

By M.D. Kittle | Wisconsin Reporter

MADISON, Wis. — Mission accomplished.

If the left was looking to cut the tongue out of the conservative issue advocacy organizations they despise, than this would be the perfect time for their aircraft carrier, George W. Bush-esque, “Mission Accomplished” moment.

The work of a politically charged John Doe investigation into conservatives certainly seems to have frozen the speech of many of the kind of right-minded groups that have become common players in Wisconsin’s marketplace of political ideas over the past several years.

LIBERAL WIN? A John Doe investigation has curtailed fundraising and spending by conservative groups. That silence, targets of the investigation say, is golden for left-leaning groups, particularly in this critical election year.

Shut down are groups like the Wisconsin Club for Growth, which in 2012 spent about $8 million on issue ads or grants to other conservative groups during the state’s partisan recall campaigns.

That same year, in August, Milwaukee County District Attorney John Chisholm, launched the John Doe probe — a secret, court-administered dragnet to compel witnesses to testify to determine whether crimes have been committed — that eventually caught 29 conservative organizations in its web.

In 2013, the club spent about $1.3 million. This year, the organization, led by conservative activist Eric O’Keefe, has been mostly silent, with the exception of a little advertising on Right Wisconsin, a conservative website led by Milwaukee talk show host Charlie Sykes.

“The whole purpose of the investigation has been to stifle speech by putting people on notice, by sending out subpoenas, by making it impossible for them to go raise money, to spend money,” David B. Rivkin Jr., lead attorney for O’Keefe and the Wisconsin Club for Growth, told Wisconsin Reporter earlier this month.

“The Club for Growth has spent millions of dollars in issue advocacy to get out its message on taxes and the budget. Now, it has been completely benched. The same is true about dozens of other conservative organizations in Wisconsin,” Rivkin said.

Another target, Wisconsin Manufacturers & Commerce, which spent an estimated $4.7 million in the 2011 and 2012 recall campaigns, according to the Wisconsin Democracy Campaign, but beyond spending an estimated $500,000 on the 2013 spring election the group has been mostly silent in recent months. WMC officials declined comment on the issue.

One conservative target has told Wisconsin Reporter the John Doe investigation, bound by a secrecy order that comes with possible jail time for those who violate its terms, has made it nearly impossible for her group to raise money. The source, who asked to remain anonymous due to her fears of prosecutor reprisal, said there hasn’t been enough money coming in to cover the legal expenses to defend her group against the onslaught of the John Doe probe.

“That was particularly frustrating,” she said, noting that the legal bills related to the investigation so far have climbed into the “thousands of dollars.”

O’Keefe and the Wisconsin Club for Growth are fighting back, suing Chisholm, two Milwaukee County assistant DAs, John Doe special prosecutor Francis Schmitz and contracted investigator Dean Nickel in federal court. The civil rights lawsuit, filed in February in the U.S. District Court Eastern District of Wisconsin in Milwaukee, seeks unspecified damages from the defendants, alleging they deprived O’Keefe and club members of their First Amendment rights of free speech and association.

The prosecutors-turned-defendants stand by the investigation, arguing in court they acted well within their rights to investigate allegations of illegal coordination between the conservative groups and Walker’s campaign during the Democrats’ recall drive.

The liberal and Big Labor-led campaign to turn Republican Gov. Scott Walker out of office failed. But O’Keefe in his lawsuit claims the losing left has gotten what it wanted through a never-ending John Doe investigation that has greatly stifled conservative speech — particularly during Walker’s pivotal re-election campaign this year.

“Almost three years’ worth of pain and suffering has been inflicted on these people and the organizations have been unable to participate on key policy issues,” Rivkin said. “You cannot put this back together. Irreparable harm has been inflicted. This is not something that should be taken lightly.”

U.S. District Court Judge Rudolph Randa is not taking the issues raised in O’Keefe’s civil rights case lightly. The federal judge earlier this month — twice — ordered the John Doe investigation shut down. His preliminary injunction went as far as demanding the prosecutors return seized property in what have been described as “paramilitary-style” predawn raids at the homes of conservative targets, and that copies of the materials be destroyed.

The 7th Circuit U.S. Court of Appeals stayed the return-and-destroy portion of Randa’s preliminary injunction. Prosecutors have appealed Randa’s decision to the court, which just last week ruled that Wisconsin’s campaign finance laws regarding issue advertising are unconstitutional. As Milwaukee constitutional law expert Rick Esenberg put it, the 7th Circuit’s decision means the John Doe “may not be dead, but it’s flat-lining.”

Still, conservatives targeted in the investigation remain reluctant to talk because there is uncertainty on whether the gag order remains in effect, even with the preliminary injunction in place. And with cases playing out in the federal appeals court and in the state Supreme Court, the investigation remains ever-present and, to conservatives who have spent years fearing it, ever menacing.

“I would think that even though Judge Randa has halted the investigation, it might be hard to get donors to pony up because they don’t know what’s going to happen,” said a legal source with knowledge of the court cases involving the probe. “This could be reversed. Then what’s going to happen to their money? Are they going to get someone coming to their home at 5 o’clock in the morning?

“That chilling effect is still there,” said the legal source, who asked not to be identified due to his proximity to the matter. “… If you are having to obtain money for lawyers you probably don’t have money you can obtain for speech.”

Don’t expect any tears from the left. It’s clear liberals nationwide are more than glad to bang the drum on the long and winding John Doe probes into Walker and his conservative allies.

“… (Walker) still paid thousands in legal defense fees related to the investigation,” Brad Woodhouse, former Democratic National Committee spokesman turned president of American Bridge 21st Century, the Hillary Clinton-attached left-leaning political action committee, said in February. The liberal spinmeister was referring to another John Doe probe launched by Chisholm and crew that targeted former aides and associates of Walker when he was Milwaukee County executive. That investigation ended, much to the dismay of Democrats, without any charges of wrong-doing against the governor.

“Now, mere months after the first three-year long investigation was closed, there is a second John Doe investigation related to spending and coordination of outside groups in Walker’s 2011 recall election,” Woodhouse declared.

Conservative targets assert the John Doe process is the punishment — and it has come with chilling effects.

Mission accomplished.

Contact M.D. Kittle at