Fortunately for the interests of American democracy, the First Amendment and citizen advocacy, state prosecutors in Wisconsin have just lost another round in their outrageous attempt to criminalize political speech and silence the voices of conservatives in Wisconsin.
On Oct. 14, federal district court Judge Rudolph Randa issued a temporary injunction prohibiting the Wisconsin Government Accountability Board and Milwaukee County District Attorney John Chisholm from enforcing a Wisconsin statute that they have mistakenly interpreted to prevent coordinated issue advocacy.
In essence, their interpretation, which violates basic First Amendment protections, would bar citizens and membership organizations such as the National Rifle Association or Club for Growth from talking to elected officials about issues that are before the public–like the public employees’ union bill that Republican Gov. Scott Walker sponsored and the legislature passed.
According to Randa, whose views on issue advocacy were supported by the Seventh Circuit, states can only regulate express advocacy that is coordinated between candidates and organizations. In other words, government can restrict advocacy that directly asks citizens to vote for or against particular candidates, but not advocacy that merely speaks out in favor of a particular issue that a candidate also supports.
This secret investigation of political speech initiated and conducted by Wisconsin officials is one of the most extreme abuses of government power in recent memory
This particular injunction was sought by Citizens for Responsible Government Advocates, a 501(c)(4) organization that advocates “in favor of fiscal conservatism and private property rights. “ Chisholm (with the help of the GAB) has been the driving force behind the secret John Doe investigation in Wisconsin that local prosecutors were running against almost every conservative organization in the state (coordinated issue advocacy by liberal organizations and unions was apparently of no interest to prosecutors).
A former prosecutor in Chisholm’s office recently revealed that this investigation may have been a personal vendetta by Chisholm because his wife, a teacher’s union steward at a local high school, was upset over the union bill. The former prosecutor described Chisholm as “hyper-partisan” over the issue.
The legal theory advanced by Chisholm and the GAB to defend their actions is so “tenuous” that Wisconsin Attorney General J.B. Van Hollen refused to represent them. They requested a delay in the expedited briefing schedule ordered by Randa. He refused that request, noting that with the general election only three weeks away, “any further delay threatens to negate the effectiveness” of the requested relief. The whole point of this prosecution has seemingly been to intimidate, harass and silence conservatives in Wisconsin, and the defendants may have been hoping for a further delay in this case that would prevent Citizens for Responsible Government from being able to speak out about the issues present in the pending election.
This secret investigation of political speech initiated and conducted by local and state officials in Wisconsin is one of the most extreme abuses of government power in recent memory, including nighttime raids by armed officers on the homes of political activists across Wisconsin who seized personal, business and other records. Many of these raids coincided (although hardly coincidentally) with political events (including raiding Walker’s office the day before the 2010 gubernatorial election), and details of the probe were strategically leaked to the media. Because they spoke out in favor of legislation and other public policy issues, conservatives were treated like dangerous members of a drug cartel or a mob operation.
We can be thankful that Randa stopped the latest abuse of prosecutorial authority in Wisconsin. But we are still a very long way from punishing all of the officials who have participated in this shocking and disgraceful conduct or reforming Wisconsin state law to make sure it never happens again.