This column by ACRU Policy Board member Hans von Spakovsky was published July 17, 2015 by The Daily Signal.
In a lengthy decision issued on July 16, the Wisconsin Supreme Court has finally put an end to the secret, unconstitutional, “John Doe” investigation of conservative nonprofits in Wisconsin, such as Wisconsin Club for Growth.
This legal harassment was engineered by a Democratic local prosecutor, John Chisholm, and the head of the state’s “Government Accountability Board,” Kevin Kennedy.
Hopefully, both of them, as well as others involved in this persecution like special prosecutor Francis Schmitz, will now be held accountable both in civil suits and by the state bar for their abusive actions, which targeted organizations because of their vocal support for Gov. Scott Walker’s policy agenda.
They found themselves the targets of a criminal investigation for exercising their most basic First Amendment right to speak about state government and issues before the state legislature.
This investigation was initiated in Milwaukee County, after the local district attorney, John Chisholm, expressed his anger over the union legislation sponsored by Walker that affected Chisholm’s wife, a member of the teacher’s union.
It subsequently expanded into four additional counties, where prosecutors “sought, and received, wide-ranging subpoenas and search warrants for 29 organizations and individuals, seeking millions of documents.”
The prosecutors went after virtually the entire conservative advocacy community in Wisconsin and demanded that the targets keep the investigation secret, threatening them with prosecution if they revealed what was going on.
The prosecutors treated the targets of their investigation as if they were the members of a dangerous drug cartel or mob operation. As the Wisconsin Supreme Court said, they executed search warrants against the personal homes and families of the leaders of these nonprofits in “pre-dawn, armed, paramilitary-style raids in which bright floodlights were used to illuminate the targets’ homes.”
This was dangerous, unjustified, and unnecessary unless, of course, the intent was to intimidate conservatives and punish them for speaking up.
According to the court, the “breadth of the documents gathered… and seized… is amazing. Millions of documents, both in digital and paper copy… 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 prosecutors “obtained virtually every document possessed by the [targets] relating to every aspect of their lives, both personal and professional, over a five-year span (from 2009 to 2013).”
And those documents were seized “without regard to content or relevance to the alleged violations” of the law. It included “wholly irrelevant information, such as retirement income statements, personal financial account information, personal letters, and family photos.”
In an extensive, substantive analysis, Wisconsin Supreme Court Justice Michael Gableman points out that the theory under which the prosecutors were pursuing this investigation “is unsupported in either reason or law.”
Their interpretation of the law was “so sweeping” that it would apply to “constitutionally protected conduct which the state is not permitted to regulate.”
Gableman goes through the long, complicated procedural history of this investigation, which started with the alleged misuse of public resources in the Milwaukee County Executive’s Office, but quickly expanded to cover supposedly coordinated activity between independent groups and government officials on public policy issues.
The problem was that independent groups and citizens have a First Amendment right to coordinate their speech and activities on issues—campaign finance laws restrict only coordinated activity on election campaigns. The prosecutors completely misinterpreted the law to investigation activity that was not illegal.
Gableman recognized the importance of stopping what the prosecutors were doing, which was a direct assault on political speech:
We are keenly aware that this task bears directly on the ability of all citizens to engage in the democratic process. The special prosecutor’s theories implicate one of the foundational principles of our nation: The freedom of speech, specifically, political speech.
Fortunately, the court concluded that this intrusive investigation went far beyond what the law and the Constitution allow. It was so “broad and so extensive that they make the fruits of the legendary Watergate break-in look insignificant by comparison.”
Our democracy is supposed to assure the “unfettered interchange of ideas for the bringing about of political and social changes desired by the people.” Instead, the prosecutors’ theories “would assure that such political speech will be investigated with paramilitary-style home invasions conducted in the pre-dawn hours and then prosecuted and punished.”
The court ordered the investigation closed. The prosecutors were directed to “cease all activities related to the investigation, return all property seized in the investigation from any individual or organization, and permanently destroy all copies of information and other materials obtained through the investigation.”
The targets of the investigation — virtually the entire conservative community in Wisconsin — is “relieved of any duty to cooperate further with the investigation.”
Thus, the John Doe investigation has been terminated, but the damage done to the lives, property, reputations, and families of those victimized by this Stasi-style investigation may never be repaired. And the intimidation of conservative speakers and the chilling of conservative advocacy on issues of importance to the citizens of Wisconsin may be long lasting.
This investigation not only caused people to go silent, so as not to attract the attention of these prosecutors, but it caused financial problems for conservative organizations as their funding dried up when donors stayed away to avoid getting caught up in a politically-motivated, partisan investigation. What happened in Wisconsin is shameful and an embarrassment that will take a long time for the state to live down.