By David B. Rivkin Jr. and Andrew Grossman
The criminalization of politics is bad enough—just ask Texas Gov. Rick Perry—but a new turn to target citizens as well threatens to permanently warp our political discourse. Like it or not, federal courts will have to intervene to uphold Americans’ First Amendment rights against win-at-any-cost politics.
Wisconsin is ground zero of this phenomenon. A partisan elected district attorney, John Chisholm, reportedly goaded on by his union-steward wife, Colleen, decided to take aim at Republican Gov. Scott Walker after his 2011 “Budget Repair Bill” cut back on public-sector collective bargaining within the state. But Mr. Chisholm didn’t stop there: After an aggressive criminal investigation failed to knock Mr. Walker out of office, the district attorney set his sights on the governor’s philosophical allies, an assortment of conservative citizen groups that supported Walker’s reforms.
The claim was that these groups illegally “coordinated” their speech on the issues with Gov. Walker’s campaign, thereby circumventing campaign-finance regulations. The evidence? Intercepted emails and phone records showing that some of the groups communicated with Gov. Walker’s campaign, mostly on policy issues. That wasn’t enough to bring charges, but it did allow Mr. Chisholm to launch an aggressive criminal investigation targeting Gov. Walker’s supporters, complete with home raids and everything-but-the-kitchen sink subpoenas.
These efforts had the intended effect: Funding for conservative policy advocacy dried up and Gov. Walker’s supporters were forced to redirect their energies from political activism to courtroom litigation.
This is not the first time the political left has used criminal law as a campaign device. It started with the prosecution of former Texas Republican Rep. Tom DeLay —who was finally exonerated in 2013 of trumped-up campaign-finance charges nine years after being charged. Another tactic has been to fund groups like the American Democracy Legal Fund, which has deluged Republican lawmakers with ethics complaints.
Yet the dubious innovation in Wisconsin was to target citizens, banking on the fact that they won’t or can’t fight back. The assumption held true for many groups. But not all of them.
The Wisconsin Club for Growth and its director, Eric O’Keefe, not only challenged the subpoenas directed at the Club, but also brought suit in federal court this year to vindicate their federal constitutional rights. (We represent the Club and Mr. O’Keefe in that action.) The investigation, they argued, was viewpoint-based retaliation for their advocacy in support of Gov. Walker’s agenda, in blatant violation of their First Amendment rights. The district court agreed and in May blocked the investigation, reasoning that the District Attorney Chisholm’s theory of “coordination” was unconstitutional and could only have been adopted in bad faith.
In September, however, a panel of the Seventh Circuit Court of Appeals reversed that decision, on the view that federal courts have no business interfering in state criminal investigations. While visibly distressed by the John Doe investigation, the three-judge panel assumed that the Club and Mr. O’Keefe could simply ask the state court overseeing the investigation for relief.
Easier said then done. While there is a state court overseeing one piece of Mr. Chisholm’s wide-ranging investigation, that court doesn’t exercise control over other conduct by Mr. Chisholm and his associates and doesn’t have the power to consider a First Amendment retaliation claim. And quashing a subpoena—the relief available in that state court—is no substitute for what the Constitution actually guarantees: freedom of speech without fear of government retaliation based on your viewpoint. In effect, the Seventh Circuit’s decision leaves John Doe’s victims out in the cold, so far as their First Amendment rights are concerned.
Unfortunately, Wisconsin may be an early indication of what’s to come. Just as the Delay prosecution touched off a dozen other politically motived cases, the Wisconsin John Doe investigation provides a template for similar mischief across the nation. It suggests that anyone can lob accusations of illegal “coordination” between an officeholder and his allies—and all a partisan prosecutor needs is evidence of a single private meeting or email to justify an intrusive and aggressive investigation. It’s that easy to tie your ideological opponents in knots for months or years on end. After Wisconsin, the temptation to use the law as a political weapon may prove irresistible.
The casualty is citizens’ ability to speak out on matters of public importance and interact with their elected representatives, rights which are at the very core of the First Amendment’s protections. Federal courts exist to enforce federal rights, particularly when they are under siege by state officials. If the federal judges shirk that duty, it will only embolden those bent on misusing criminal law to silence their opponents.
Messrs. Rivkin and Grossman are attorneys at the firm Baker Hostetler LLP. Mr. Rivkin served in the Justice Department and the White House Counsel’s Office in the Reagan and George H.W. Bush administrations.