A long-standing criminal prosecution of “John Doe” targets finally ended with a massive court decision that harshly criticized both the blatant constitutional violations by government operatives and antics such as “paramilitary-style home invasions.” The Wisconsin Supreme Court issued its decision in July 2015, providing potent reminders about the importance of free speech to our country’s democratic processes, how damaging government abuses can be, and the continued importance of educational “issue advocacy” carried out by nonprofits.
Background – Search Warrants in Extremis
The underlying facts are complicated. The controversy began in 2010, when the Milwaukee County District Attorney initiated a “John Doe” investigation into the financial conduct of staff and campaign supporters of Scott Walker, then the Milwaukee County Executive and now Wisconsin’s Governor. John Doe probes are investigative legal proceedings to determine whether a crime has been committed and, if so, by whom. This investigation triggered a second John Doe probe to root out allegedly illegal campaign “coordination” between Walker’s staff (during his 2012 gubernatorial recall election) and individuals involved with certain issue advocacy groups. The term “issue advocacy” typically means educational efforts to raise public awareness about various public policy topics, usually carried out by nonprofit organizations. Depending on the issues involved, such efforts may intersect with politics, such as environmental causes, pro-life, pro-choice, animal rights, and fiscal responsibility.
A state judge later authorized the John Doe proceeding and granted a secrecy order covering the investigation. By August 2013, court permission had been granted to commence John Doe proceedings and secrecy orders in five Wisconsin counties. A special prosecutor was appointed to oversee the investigation. By October 2013, 29 subpoenas had been issued, compelling the production of documents relating to coordination between issue advocacy groups and Scott Walker’s campaign committee. Search warrants were issued for the homes of two individuals and then were executed in pre-dawn hours.
As the Wisconsin Supreme Court’s decision reflects, the scope of such searches was disturbing, to say the least:
The breadth of the documents gathered pursuant to subpoenas and seized pursuant to search warrants is amazing. Millions of documents, both in digital and paper copy, were subpoenaed and/or seized. Deputies seized business papers, computer equipment, phones, and other devices, while their targets were restrained under police supervision and denied the ability to contact their attorneys. The special prosecutor obtained virtually every document possessed by the Unnamed Movants relating to every aspect of their lives, both personal and professional, over a five-year span (from 2009 to 2013). Such documents were subpoenaed and/or seized without regard to content or relevance to the alleged violations. . . . As part of this dragnet, the special prosecutor also had seized wholly irrelevant information, such as retirement income statements, personal financial account information, personal letters, and family photos.
State ex rel. Two Unnamed Petitioners v. Peterson, 363 Wis.2d 1, 38 (2015).
Judicial Relief – Free Speech Prevails
In the weeks following this raid, several of the targeted individuals (identified as Unnamed Movants) filed motions to quash the subpoenas. After extensive machinations by various trial court judges, the litigation reached the Wisconsin Supreme Court for a decisive ruling. The Court first resoundingly affirmed the critical First Amendment principles at stake, observing that free speech is a foundational principle of democracy. The Court then centered on political speech, as “integral” to our government’s operation because it allows for the exchange of ideas. Political speech thus must be afforded the highest level of available legal protection.
The Court required that the statutory language at issue be “closely examined,” particularly since the law was criminal in nature and addressed an area “permeated by First Amendment interests.” The Court further recognized that limited regulation is allowed within the political campaign finance context, but only with respect to disclosure and reporting requirements and contribution limits. While such limitations may be important for minimizing corruption, they should not trump free speech values. Indeed, such anti-corruption goals cannot justify regulation of all political speech.
Rather, as previously established by the U.S. Supreme Court, campaign finance regulation is permitted only for “express advocacy and its functional equivalent,” that is, speech directly related to political campaign advocacy. But such regulation is not allowed for “issue advocacy,” i.e., speech not directly related to political campaigns. To avoid potentially dangerous “chilling effects” on free speech resulting from the inevitable tension between these categories, a “close fit” is therefore required between a government’s means (its laws) and its ends (to avoid campaign finance corruption).
In this case, the “fit” was far from close. Relying on “political purposes” and “coordination” statutory terms, the special prosecutor claimed a criminally illegal “coordination” between the Unnamed Movants and political campaign activity as the crux of his case. The Wisconsin Supreme Court gave little credence to such arguments. The Court ruled that both terms were unconstitutionally overbroad and vague, in violation of both the federal and state constitutions. As the Court explained, people “of common intelligence must necessarily guess at [the law’s] meaning and differ as to its application,” making the law legally unacceptable. Id. at 47 (quoting Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 339 (2010)). Particularly within this case’s criminal context, such vagueness clearly could not pass constitutional muster.
Granting full relief to the Unnamed Movants, the Court further observed that the Wisconsin campaign finance law was “labyrinthine” and otherwise constitutionally defective. Sadly, two dissenting justices argued that campaign finance considerations were sufficiently compelling to warrant lesser First Amendment protections than accorded by the court majority.
Thankfully, the Unnamed Movants’ First Amendment rights ultimately prevailed. As the U.S. Supreme Court ruled nearly a decade ago, and as the Wisconsin Supreme Court echoed, “Where the First Amendment is implicated, the tie goes to the speaker, not the censor.” Fed. Election Comm’n v. Wisconsin Right to Life, Inc., 551 U.S. 449, 474 (2007). May our government’s leaders remember this judicial admonition as nonprofits continue to engage in issue advocacy and other vigorous exchanges of ideas, not only to advance public policy goals but also to uphold our country’s democratic values
