Freedom Line Blog

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.

Here are a few backgrounders on the investigation, which made prime targets of Wisconsin Club for Growth executive director Eric O’Keefe and at least 28 other activist groups.

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.

The old saying goes that “close” only counts in horseshoes and hand grenades. Well, last night’s Wisconsin recall election must have been a really explosive hand grenade, according to the Washington Post. Drudge has been making fun of the Post for sub-heading its story on Gov. Scott Walker’s victory a “close vote.” Well, I went the extra mile and compared this “close” election to the Post’s handling of another one with very similar results.

In reporting on Barack Obama’s victory in 2008, the text of the Post story called it a “Democratic rout.” And what was Obama’s margin over John McCain? It was 7.2 percent. What was Walker’s margin over Tom Barrett last night? A nearly identical 6.8 percent. Yet the first was a “rout,” while the second was a “close vote.”

Hmmmm….. maybe what the Post meant was that last night was “close to being a rout.”

Byron York explains why President Barack Obama is not campaigning on behalf of Tom Barrett, the Democrat running against Republican Governor Scott Walker in Wisconsin’s recall election on Tuesday:

The latest poll on the recall battle shows why Obama is staying away. It’s not just that he doesn’t want to appear with a loser. Perhaps just as importantly, there is no advantage for Obama to risk his own popularity by making a high-profile visit to oppose policies that are finding increasing favor with voters.

The new poll, from Marquette University Law School, shows Walker leading Barrett 52 percent to 45 percent. Beyond the horse race, the Marquette pollsters also asked about specific elements of Walker’s reforms. It turns out some of the key elements of those policies — reforms Obama strongly opposed — are now winning the day.

Those policies include:

• 75% of voters in favor of “requiring public employees to contribute to their own pensions and pay more for health insurance.”

• 55% of voters in favor of “limiting collective bargaining for most public employees.”

• 54% of voters thinking Wisconsin is better off in the long run because of the changes in state government

With these numbers and 52% of voters preferring him, Scott Walker appears likely to keep his job.  If Wisconsin voters start to apply the same poll questions to Obama’s failed economic policies – forty months of 8% unemployment, doubling the national debt in just one term in office – they’ll come to the opposite conclusion about the President.

No wonder he doesn’t want to be seen in Wisconsin.

Greg Sargent: In case you were wondering how high the stakes are for the national right in the battle over Scott Walker’s recall, consider this: The Americans for Prosperity Foundation, a branch of the conservative group founded by the Koch brothers, is sinking at least $700,000 into ads in Wisconsin defending Walker’s record.

Here it is: