Criminalizing Conservatism

 Criminalizing Conservatism

In Scott Walker’s Wisconsin, prosecutors would shut down all conservative activity.

By Jon Cassidy – 8.29.14

Wisconsin has created a new type of political supervillain by combining the most reprehensible attributes of this nation’s two most infamous ogres of the last century — Joseph McCarthy and Richard Nixon.

Start with McCarthy’s reckless and unsubstantiated allegations against random names on a list, his endless investigations that produced nothing but press coverage and ruined lives. Then take Nixon’s vindictiveness, his desire to use the mechanisms of state to crush his political enemies, and remove the legal impediments that kept him from doing much about it. Give him laws like Wisconsin’s.

There never would have been any Cubans breaking into the Watergate to take a look at the files of the Democratic National Committee or plant bugs. G. Gordon Liddy and E. Howard Hunt could have just written subpoenas for whatever they wanted without restriction. When there’s nobody to stop them, it turns out that what they want to look at is everything.

Newly unsealed federal court documents show that a crew of local prosecutors — Milwaukee County District Attorney John Chisholm, a Democrat, his assistants, Bruce Landgraf and David Robles, a figurehead special prosecutor named Francis Schmitz, and a contract investigator named Dean Nickel — have exploited state law to seize “more or less all” the records of the Wisconsin Club for Growth and every other conservative group in the state dating back to 2009 as part of a boundless investigation of their own wild hunches.

Despite their unhindered access to the complete inner workings of the conservative movement in Wisconsin, these prosecutors have come up with nothing. They say they’re looking into campaign finance violations, but the facts they’ve compiled don’t even amount to “probable cause” to believe a crime has taken place, according to the state court that finally halted the investigation earlier this year. For one reason, the “issue ads” that the Wisconsin Club for Growth ran in defense of the state’s collective bargaining reforms “cannot be and are not subject to Wisconsin’s campaign finance laws,” according to a ruling by U.S. District Court Judge Rudolph T. Randa.

But prosecutors knew that before they started. In a sense, they’re trying to prove murder when they know nobody died. The distinction between issue advocacy, which is constitutionally protected free speech, and express advocacy of a candidate, which may be regulated to prevent corruption, has been around since 1976, and is understood by just about everyone, even these prosecutors. The local media don’t get it, but what else is new?

The prosecutors’ real intent in having armed officers in flak vests storming homes at dawn and in issuing as many as 100 subpoenas to 29 different right-of-center organizations is to shut down conservatives in Wisconsin, according to the plaintiffs. And in that, they’ve been wildly successful, as all of the most active conservative groups are off the airwaves and taking few phone calls from their fellows, lest they get hit with new subpoenas and criminal accusations.

In February, the Wisconsin Club for Growth and its founder, Eric O’Keefe, filed a federal civil rights lawsuit, arguing that the prosecutors were abusing their offices and targeting them for their expression of political opinions. Randa seems inclined to agree, and he dismissed the prosecutors’ argument that they were protected by absolute sovereign immunity for a fitting reason: apparently, if you haven’t established probable cause to go kicking in someone’s door, there’s a chance you might be held liable for your intrusions.

In legal briefs, O’Keefe’s attorneys compare the prosecutors to officials in Louisiana under Jim Crow, taking passages from a 1965 Supreme Court ruling that are perfectly apt here. In that case,

[T]he Court acted to enjoin state officials from prosecuting or threatening to prosecute a civil rights group and its leaders as part of “a plan to employ arrests, seizures, and threats of prosecution under color of the statutes to harass appellants and discourage them and their supporters from asserting and attempting to vindicate the constitutional rights of Negro citizens of Louisiana.” These actions, the Court held, were undertaken specifically to impose a “chilling effect on free expression.” In particular, the state officials’ actions were calculated to “frighten off potential members and contributors”; their “[s]eizures of documents and records have paralyzed operations and threatened exposure of the identity of adherents to a locally unpopular cause”; and “the continuing threat of prosecution portends further arrests and seizures, some of which may be upheld and all of which will cause the organization inconvenience or worse.”

So add a little Bull Connor to our McCarthy/Nixon hybrid, and