Better in their words…

Imagine, if you can, that the subject was “left leaning”?
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By Richard M. Esenberg
Sept. 19, 2014 6:53 p.m. ET

Last year Wisconsin prosecutors—at the behest of Milwaukee’s Democratic District Attorney John Chisholm —launched a secret criminal investigation involving almost every conservative advocacy group in the state. Armed law-enforcement personnel executed pre-dawn searches of the homes of consultants for the Wisconsin Club for Growth. The organization had engaged in “issue advocacy”—running ads that do not call for the election or defeat of a candidate—both before and during the extended cycle of recall elections for state officials following Gov. Scott Walker’s collective-bargaining reforms in 2011. At the same time, subpoenas were directed to approximately 30 other conservative advocacy organizations and their bankers and accountants.

The investigation has been stopped by a preliminary injunction in O’Keefe v. Chisholm, and it is the subject of legal wrangling in state and federal courts, but if Mr. Chisholm’s efforts were politically motivated, then he can already claim victory. As midterm elections near, Wisconsin conservative groups have been sufficiently intimidated amid the uncertain legal climate, or their money has been so depleted by courtroom fights, that they are not the force in the state that they were in 2012.

As the Milwaukee Journal Sentinel reported on Sept. 14, Gov. Walker’s campaign was outspent in television advertising by his Democratic challenger, Mary Burke, thanks in part to donations from the Greater Wisconsin Committee, “an anti-Walker group heavily funded by organized labor.” Ms. Burke’s spending advantage is a remarkable contrast with the 2012 recall fight, when Gov. Walker enjoyed strong conservative backing and was better funded than his opposition. A recent editorial in these pages noted that the Wisconsin Club for Growth’s political fundraising has been suspended and the group “hasn’t run a single ad in this election cycle.”

Campaign-finance lawyers often say that the process is the punishment, and that has certainly been the case in Wisconsin. I have witnessed it first-hand as my organization, the Wisconsin Institute for Law & Liberty, consults with many conservative advocacy groups across Wisconsin.

After the raids became public knowledge, the prosecutors claimed that they were investigating allegations that the Wisconsin Club for Growth and other groups had illegally “coordinated” their speech on political issues with Gov. Walker’s campaign in violation of the state’s baroque and often inscrutable campaign finance laws. The investigators seized sensitive and highly confidential records of a good part of the state’s conservative infrastructure.

The investigation was conducted under the state’s peculiar John Doe procedure—an inquiry that is held in secret and in which those being investigated are subject to a gag order. The targets of the raids were told that they could not tell the public what was being done to them.

This inquiry is likely to lead to little or nothing—just as Mr. Chisholm’s earlier three-year probe into Mr. Walker’s tenure as Milwaukee County executive led to only a few minor prosecutions. Both state and federal judges have rejected the prosecutors’ theory regarding the illegality of the Wisconsin Club for Growth’s activities, but the district attorney continues to press his case. O’Keefe v. Chisholm is the group’s effort, now in the U.S. Seventh Circuit Court of Appeals, to stop the probe.

Members of Wisconsin conservative advocacy groups tell me that they are reluctant to speak out on the issues, and that donors are wary of donating, when the price may be having their house ransacked and their private affairs dragged into court cases. The fact that these people asked for anonymity when speaking with me is indicative of how successful Mr. Chisholm has been in discouraging conservative speech in Wisconsin.

A conservative acquaintance who is a longtime political donor told me that he backed off giving money to the organizers of a political rally because candidates for office were going to speak at the event—he feared that his donation would have left him open to legal trouble for having “coordinated” messaging with the candidates. I note that Mary Burke recently spoke at “Fighting BobFest,” a liberal-issues rally sponsored by two Madison-area media companies that apparently felt unworried about getting on the wrong side of prosecutors.

Courts have long recognized that political speech is fragile and can be chilled by laws that are too broad and regulators who are overly zealous. Potential speakers in Wisconsin are now well aware of the prosecutors’ strong-arm tactics. In the event that the state Supreme Court finally rules on Mr. Chisholm’s appeal, the possibility that his investigation would be restarted leaves them fearful of being next on his list. This is a sorry state of affairs: Both the right to speak on issues and to speak—even to “coordinate”—with elected officials about those issues is constitutionally protected. Illegal coordination must be narrowly and clearly defined, but Wisconsin law doesn’t do that, and the prosecutors have taken full advantage of the law’s vagaries.

In the meantime, because details of the prosecutors’ investigation remain secret, both the media and liberal partisans have been free to speculate about what is happening—aided by documents that have leaked or been selectively released for legal reasons. None of them reflect illegal activity by the governor or the targeted groups, but the local press is deeply invested in the idea that there must be a story somewhere. It pounces on each detail. Because campaign-finance law is extraordinarily complex, some voters will interpret a headline as proof that someone must have done something wrong. And that’s the whole idea. In Wisconsin, criminal law—wielded selectively and aggressively—has become a political weapon.

Mr. Esenberg is the president and general counsel of the Wisconsin Institute for Law & Liberty. The group filed an amicus brief in O’Keefe v. Chisholm.
Richard M. Esenberg: How Wisconsin Prosecutors Became Campaign Partisans – WSJ.