Politics & Policy

A Partisan Probe Defeated

Democrats whiff on Governor Scott Walker once again.

Early in the morning on October 3, 2013, armed officers showed up at the homes of Deborah Jordahl and R. J. Johnson. Their homes were illuminated by floodlights perched on sheriff deputies’ vehicles as officers seized business papers, computer equipment, phones, and other devices. While their residences were raided, Jordahl and Johnson were restrained under police supervision and denied the ability to contact their attorneys.

Jordahl and Johnson were not part of any illicit drug ring. They hadn’t been trafficking in human organs or distributing child pornography.

Their crime? Supporting Wisconsin governor Scott Walker.

Jordahl and Johnson run the Wisconsin Club for Growth, an independent organization that promotes free-market policies. When Walker battled the public-sector unions in 2011 and 2012, the Club raised funds and ran advertisements supporting restrictions on government-union bargaining power.

After Walker prevailed in a much-publicized June 2012 recall election, the Club’s activities drew the interest of Milwaukee’s Democratic district attorney, John Chisholm. In August of 2012, Chisholm initiated a “John Doe” investigation that alleged “illegal campaign coordination” between Walker’s campaign committee and independent groups like the Club. In total, 29 conservative-leaning groups were targeted. At the same time, the activities of independent-expenditure groups on the left were ignored.

This was the second John Doe investigation that forces on the right had faced since Walker began his campaign for governor. In 2010, a Doe probe of Walker’s tenure as Milwaukee County executive (the office he still held while running) resulted in convictions for several of his ex-staffers — one for child enticement, one for stealing money from a veterans’ fund, and one for sending political e-mails on government time. But the investigation shut down in March of 2013, with Walker having been cleared of any wrongdoing.

On Tuesday, federal judge Rudolph Randa effectively shut down the Left’s latest attempts to target conservatives in the state. Acting on a complaint by the Club and one of its national directors, Eric O’Keefe (who detailed the harassment he has suffered during the probe in a Wall Street Journal article last November), Randa halted the investigation and ordered the return of all property seized by law enforcement, as well as the destruction of any information and materials gained in the investigation. According to Randa’s ruling, the Club is no longer required to cooperate with prosecutors in any way.

The ruling is especially timely because Walker is up for reelection this November. Democrats were certainly going to make the investigation a central point in their attacks on Walker, as they did with the first Doe probe. The Club for Growth will also now be able to resume raising money and participating in issue advertising, though O’Keefe believes the cloud of the investigation has cost his group $2 million in lost fundraising.

In framing the Club’s case as an assault on the First Amendment, Randa’s ruling references the U.S. Supreme Court’s highest-profile campaign-finance decisions: Buckley v. Valeo, Citizens United, and a recent case affirming Wisconsin Right to Life’s ability to engage in issue advocacy. “The plaintiffs have been shut out of the political process merely by association with conservative politicians. This cannot square with the First Amendment and what it was meant to protect,” Randa wrote, adding that “attempts to purify the public square led to places like the Guillotine and the Gulag.”

Prosecutors had argued that under Wisconsin law, the Club’s issue advocacy was a direct benefit to Walker, and therefore had to be reported as an in-kind contribution to his campaign (even though the Club ran no ads during Walker’s recall election, only during the union dust-up and during campaigns for state senators who were facing recalls).

But Randa notes that much of Wisconsin’s campaign-finance law has been gutted by U.S. Supreme Court decisions like Citizens United, which permits not only issue advocacy, but express advocacy by independent groups. The prosecutors’ argument, Randa writes, “is just another way of saying that the public interest is served by enforcing a law that restricts First Amendment freedoms. Obviously, the public interest is served by the exact opposite proposition.”

Randa also relies heavily on the recent Supreme Court decision in McCutcheon v. Federal Election Commission, which eliminated aggregate contribution limits to federal candidates. In McCutcheon, the Court cited quid pro quo corruption — or the appearance thereof — as the only interest sufficient to justify campaign-finance restrictions.

In the case of the Club for Growth, there was no quid pro quo corruption evident. Merely spending money in support of a candidate isn’t evidence of corruption or coordination in any way — and even though R. J. Johnson did consulting work for both the Club and Friends of Scott Walker, Randa says it doesn’t matter.

“A candidate’s coordination with and approval of issue advocacy speech, along with the fact that the speech may benefit his or her campaign because the position taken on the issues coincides with his or her own, does not rise to the level of favors for cash,” wrote Randa. “Logic instructs that there is no room for a quid pro quo arrangement when the views of the candidate and the issue advocacy organization coincide.”

Prosecutors have said they will appeal Randa’s decision to the Seventh District Court in Chicago — but until then, their feckless witch-hunt is dead. Walker has once again escaped Democrats’ attempts to put him in an orange jumpsuit.

— Christian Schneider is a columnist for the Milwaukee Journal Sentinel.


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