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Triple Play for Free Speech in Wisconsin

Three legal battles demolish tight restrictions on issue advocacy and political donations

A series of three lawsuits have completely changed the campaign finance environment in Wisconsin just months ahead of an election that some are suggesting could be yet another wave for Republicans in a deep purple state. In separate legal actions conservative organizations and individuals have lashed out against highly restrictive state campaign finance laws and a secret investigation used by Democrats to target right-of-center groups.

In a nightmarish replay of a tactic that failed in 2012, the Democrat-led Milwaukee County District Attorney’s office has been leading a wide-ranging probe into the fundraising and educational efforts of several conservative groups. Known as a John Doe probe, the process is roughly akin to a grand jury, except it is veiled in a shroud of secrecy and only a single judge – not a jury – oversees the process.

On May 8th, federal Judge Rudolph Randa ordered prosecutors to halt their months-long investigation. Wide ranging subpoenas – which I’ve seen – demanded that some conservative non-profit groups turn over lists of donors, strategy memos, fundraising pitches and other internal documents. Pre-dawn raids at the homes of several conservatives gathered personal computers and records so prosecutors could search for evidence of a potential crime.

Targeted organizations and individuals fought back, suing in federal court to say that their free speech and 4th Amendment rights were being violated. Prosecutors argued that they needed to use their power to raid and subpoena so they could find out if there was cause to file felony charges alleging illegal coordination between political and non-profit groups, and between donors and the groups they support.

It was a terrifying abuse of power by prosecutors bent on exacting political revenge on only one side of the ideological spectrum while forcing hostage groups, operatives, and donors to be silent or face certain felony charges. Thankfully, Judge Randa put an end to the liberal prosecutorial jihad.

The second lawsuit changing the landscape in Wisconsin was a challenge to the state’s aggregate limit on how much an individual donor can contribute to political candidates each cycle. Fred Young, a businessman from Racine, Wisconsin wanted to push back on the requirement that he contribute no more than $10,000 to political candidates each cycle.

Under current law, if a donor gives $10,000 to a candidate for governor, they are barred from contributing to any other candidate for state political office.

On May 9th, the Wisconsin Institute for Law and Liberty, a conservative public interest law firm (think ACLU, only conservative) secured an agreement in federal court forcing the Government Accountability Board to not enforce the limit. The GAB is the state agency tasked with enforcing campaign finance law and administering elections.

Then on May 14th, the federal 7th Circuit Court of Appeals issued a strongly worded decision practically gutting state regulations on issue advocacy groups. Wisconsin’s byzantine campaign finance laws and regulations currently violate free speech rights and are not consistent with recent free speech jurisprudence, the court said.

Despite the Citizens United decision by the Supreme Court in 2010, the Wisconsin Government Accountability Board went ahead and devised a complicated series of regulations for organizations wishing to spend money on so-called issue advocacy. Within a specified period before an election, no organization could spend money talking about policy issues unless they first filed with the GAB and functioned as a political action committee disclosing donors’ identities and jumping through legal hoops.

These restrictions applied even if the organization never asked the audience to vote one way or another, and merely presented the candidates’ record or declared position on policy issues.

Wisconsin Right to Life decided to fight the regulations, and they’ve now won at the federal appeals court level.

For liberals, these three developments are a terrifying thing. Wisconsin is the birthplace of the Progressive Movement, and there is extraordinary pride on the part of many liberals that commonplace tenants of modern liberal ideology first found their genesis in this state.

Lamenting that prosecutors couldn’t willy-nilly demand conservative groups turn over nearly all of their records for scrutiny, the Milwaukee Journal Sentinel editorial board moaned that campaigns, “already dirty with money, will run an even greater risk of less disclosure of who finances campaigns.”

And therein lies the liberal theory: Money equals dirt in politics.

Hypocritically, the fact that the inaptly named Government Accountability Board has repeatedly stonewalled open records requests by the conservative investigative watchdog group Media Trackers has never drawn the ire of Wisconsin liberals. Transparency, as Christopher Horner points out in his excellent bookThe Liberal War On Transparency,” is only a virtue to liberals when it applies to conservatives or serves as a helpful talking point.

Although these legal battles appear to be won for the moment, there is no doubt another round of fighting will take place in the courtroom, in the halls of bureaucracy, or in the chambers of the legislature. Reform of state finance laws will demand boldness from conservative legislators who are willing to permanently change the failed status quo.

Whether they will do that remains to be seen. But one thing is for sure: conservative groups in Wisconsin are going to continue to force the system to be transparent and accountable.

Brian Sikma is the communications director at Media Trackers in Wisconsin. The opinions expressed in this post are his own.

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