Wisconsin Supreme Court Shuts Down ‘John Doe’ Probe

Published July 30, 2015

The Wisconsin Supreme Court ordered Milwaukee County District Attorney John Chisholm to end his office’s aggressive “John Doe” investigation into political advocacy groups, calling the series of probes “unsupported in either reason or law” and a “fishing expedition into the lives, work, and thoughts of countless citizens.”

Beginning in 2012, Chisholm and other prosecutors began seeking evidence of illegal political coordination between Wisconsin conservative organizations and Gov. Scott Walker (R). State law enforcement agencies raided individuals’ homes and private workplaces, seizing computers, personal financial records, and property.

Destroying ‘Their Political Enemies’

Eric O’Keefe, director of the Wisconsin Club for Growth, one of the organizations targeted by Chisholm’s probes, says the criminal investigations were intended to punish people for being involved in the political process.

“The sweeping abuse here is unprecedented in Wisconsin,” O’Keefe said. “In the first phase of this John Doe, often called John Doe I, there was no serious pushback from targets. Several of us took a very defiant approach when they targeted us, though.

 “[This] is just one instance of a spreading national ailment [that] threatens the republic,” O’Keefe said. “Authoritarians are using the power of government to destroy their political enemies. By continuing to expose the evils of this particular fight, I hope to send a warning to people across the country.”

‘Speech Regulators’ Control Public

O’Keefe says elected officials use political speech rules, such as the ones he and other “John Doe” victims were accused of breaking, to control the public.

 “It may well serve as a case study in why government cannot be trusted to regulate campaign debates,” O’Keefe said. “The [use of] speech regulators inverts the proper relationship of a self-governing people: A self-governing people uses campaigns, policy debates, and elections to regulate the people. If the government regulates who can participate and how they participate in these debates, then who is sovereign?”

‘Designed to Intimidate’

Bradley Smith, a law professor at Capital University and former Federal Election Commission member, says the John Doe probe was “designed to intimidate” the public into silence.

“I don’t know of any case in which the tactics used by the government have been so nasty and designed to intimidate,” Smith said.

Smith says political speech laws such as the ones used in the “John Doe” investigations are vague by design.

“Virtually anyone who would want to be involved in a campaign also is involved in fighting for or against legislation, or is otherwise trying to shape public opinion on matters of public importance,” Smith said. “And if they’re meeting, maybe they’re ‘coordinating.’ And if there is no restriction on what type of communications can count as ‘coordinated communications’ that are treated as [campaign] ‘contributions,’ then you’ve got your complaint.”

Positive Precedent

Smith says courts should follow the precedent set by the Wisconsin decision in deciding future cases regarding political speech laws.

“If courts follow Wisconsin, this will be a major victory for free speech,” Smith said.  

Ashley Herzog ([email protected]) writes from Avon Lake, Ohio.

The photo “Walker is John Doe” is copyright © 2014 Overpass Light Brigade, and was made available under a Creative Commons Attribution-NonCommercial 2.0 Generic license..