Wisconsin’s “John Doe” Prosecutions Come to an Ignominious End
One of the more disturbing stories of political censorship of the past half-decade just came to a close in Wisconsin. The state’s Supreme Court ruled 4-2 on Thursday that a section of Wisconsin’s campaign finance law is “unconstitutionally overbroad and vague.” Moreover, the court said, a special prosecutor appointed by Milwaukee District Attorney John Chisolm to probe allegedly unlawful coordination between Governor Scott Walker and independent activist groups during the 2011 and 2012 statewide recall campaigns ended up investigating perfectly legal activities.
In short, the political fishing expedition against Badger State conservatives is finished.
A (very) short version: In 2013, the Milwaukee DA’s office and special prosecutor Francis Schmitz began hitting activists with subpoenas demanding everything from emails and memos to donor lists. As one judge would later put it, Schmitz’s subpoenas were “so extensive that they make the fruits of the legendary Watergate break-in look insignificant by comparison.” Although the subpoenas just happened to coincide with the beginning of Walker’s reelection campaign for governor, prosecutors denied any political motivation for the probe. (What? Did you think they would affirm a political motive?)
O’Keefe and Wisconsin Club for Growth sued Schmitz, et. al., contending the state’s investigation violated their First Amendment rights. A federal court last year agreed, halting a probe that had involved—among other things—SWAT teams conducting pre-dawn raids on citizens’ homes as if they were no different than drug peddlers or mob capos. Such abuses were made possible by Wisconsin’s “John Doe” law, which allows prosecutors to operate in secret—and thus without any meaningful public scrutiny or accountability.
As the Milwaukee Journal-Sentinel reports, “Large sections of court filings have been blacked out—which is highly unusual” because of the law, which lets prosecutors the power to compel people hand over documents and give testimony while forbidding them from speaking about the investigation with anyone except their lawyers. Such proceedings may be common in national security and certain criminal cases, but applying the law to a campaign-finance law investigation smacked of political persecution—which the court recognized.
Writing for the majority, Justice Michael Gableman blasted Schmitz’s conduct of the investigation and made a vigorous defense of political liberty. Here’s the key passage from the ruling:
It is utterly clear that the special prosecutor has employed theories of law that do not exist in order to investigate citizens who were wholly innocent of any wrongdoing. In other words, the special prosecutor was the instigator of a ‘perfect storm’ of wrongs that was visited upon the innocent Unnamed Movants and those who dared to associate with them. It is fortunate, indeed, for every other citizen of this great State who is interested in the protection of fundamental liberties that the special prosecutor chose as his targets innocent citizens who had both the will and the means to fight the unlimited resources of an unjust prosecution. Further, these brave individuals played a crucial role in presenting this court with an opportunity to re-endorse its commitment to upholding the fundamental right of each and every citizen to engage in lawful political activity and to do so free from the fear of the tyrannical retribution of arbitrary or capricious governmental prosecution. Let one point be clear: our conclusion today ends this unconstitutional John Doe investigation.(Emphasis added.)
Although Thursday’s ruling is a triumph for the First Amendment, a peculiar censorious instinct remains alive and well among Madison’s progressive elite. In dissent, Justice Shirley Abrahamson wrote her colleagues’ theme music ought to be “Anything Goes.”
“The majority opinion adopts an unprecedented and faulty interpretation of Wisconsin’s campaign finance law and of the First Amendment,” Abrahamson wrote. “In doing so, the majority opinion delivers a significant blow to Wisconsin’s campaign finance law and to its paramount objectives of ’stimulating vigorous campaigns on a fair and equal basis’ and providing for ‘a better informed electorate.’” It’s hard to see how pre-dawn raids and secret proceedings lead to “fair and equal” campaigns or a “better-informed” electorate, rather than a chilled political climate where dissenters from received partisan wisdom risk incurring the wrath of zealous prosecutors.
Wisconsin’s legislature is turning its attention to overhauling the state’s campaign-finance laws. In particular, some Republicans would like to do away with the “John Doe” provisions. Eliminating arbitrary and capricious rules from the statute books shouldn’t be a partisan matter. Wisconsin has seen what a political prosecution looks like. Avoiding a repeat of such abuses would seem to be a cause both parties could support.