A Federal Judge Just Called an End to Scott Walker’s Recall Probe

It’s the latest example of Wisconsin politics playing out in the courts.

National Journal
Emma Roller
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Emma Roller
May 7, 2014, 6:52 a.m.

Wis­con­sin polit­ics has nev­er been so po­lar­ized. Now, those polit­ic­al di­vi­sions are play­ing out in the fi­nal fron­ti­er: the courts.

On Tues­day night, a judge ordered that a se­cret­ive in­vest­ig­a­tion in­to the fund­ing of Gov. Scott Walk­er’s re­call cam­paign be hal­ted. In his rul­ing, U.S. Dis­trict Judge Rudolph Randa found that the se­cret­ive in­vest­ig­a­tion vi­ol­ated the First Amend­ment rights of its tar­gets — con­ser­vat­ive polit­ic­al groups.

Some back­ground: In 2012, Walk­er faced a re­call elec­tion, which he sur­vived with un­pre­ced­en­ted sup­port from Re­pub­lic­an groups — and des­pite pro-uni­on groups’ at­tempts to oust Walk­er. One of those Re­pub­lic­an groups, the Wis­con­sin Club for Growth, was ac­cused of il­leg­ally co­ordin­at­ing its cam­paign funds with Walk­er’s cam­paign, and a se­cret­ive “John Doe” in­vest­ig­a­tion was launched. In Wis­con­sin, a John Doe in­vest­ig­a­tion is “an in­de­pend­ent, in­vest­ig­at­ory tool to as­cer­tain wheth­er a crime has been com­mit­ted and if so, by whom.”

In turn, one of the group’s dir­ect­ors, Eric O’Keefe, sued the state at­tor­neys in­volved in the probe, say­ing the in­vest­ig­a­tion vi­ol­ated his First Amend­ment rights.

In ef­fect, Randa’s de­cision says the state’s in­vest­ig­a­tion against the Club for Growth is com­pletely base­less. Randa even ordered that all ma­ter­i­als col­lec­ted in the in­vest­ig­a­tion should be des­troyed, and said the group did not need to co­oper­ate with pro­sec­utors.

This is just the latest in­stance of Wis­con­sin courts be­com­ing a last re­sort for polit­ic­al man­euv­er­ing. Last week, a fed­er­al judge struck down Wis­con­sin’s con­tro­ver­sial voter-iden­ti­fic­a­tion law, which Walk­er signed in­to law in 2011. And the status of Walk­er’s most po­lar­iz­ing law, which banned pub­lic-sec­tor uni­ons from bar­gain­ing col­lect­ively, has be­come a ju­di­cial ping-pong match — up­held, over­turned, up­held, ad nauseam.

O’Keefe’s at­tor­ney, Dav­id Rivkin, said the in­vest­ig­a­tion had pre­ven­ted his cli­ent’s group from rais­ing or spend­ing money, thus in­hib­it­ing its speech.

“We are de­lighted with the rul­ing,” Rivkin told Na­tion­al Journ­al. “We feel that it be­gins the pro­cess of restor­ing our con­sti­tu­tion­ally pro­tec­ted rights that had been stifled by this un­con­sti­tu­tion­al and par­tis­an in­vest­ig­a­tion, and we look for­ward to pre­vail­ing with a per­man­ent in­junc­tion and dam­age claims.”

O’Keefe and the Wis­con­sin Club for Growth are now su­ing spe­cial pro­sec­utor Fran­cis Schmitz, who spear­headed the John Doe in­vest­ig­a­tion, along with the oth­er at­tor­neys who worked on the case. When reached by phone, Schmitz said he will al­most cer­tainly ap­peal Randa’s de­cision.

Schmitz’s at­tor­ney said Schmitz was only do­ing the job the state asked him to do.

“He has, in ac­cord­ance with his du­ties as the spe­cial pro­sec­utor, un­der­taken his re­spons­ib­il­it­ies in ac­cord­ance with Wis­con­sin law and for the pro­tec­tion of the in­teg­rity of Wis­con­sin elec­tions,” Schmitz’s at­tor­ney, Ran­dall D. Crock­er, said in a state­ment to Na­tion­al Journ­al. “We will care­fully re­view the de­cision of Judge Randa and ad­dress with our cli­ent his re­spons­ib­il­it­ies pur­su­ant to his ap­point­ment and his op­tions.”

Randa has a his­tory of de­fend­ing con­ser­vat­ive or­gan­iz­a­tions’ First Amend­ment rights. Last Au­gust, he ruled that the Cath­ol­ic Arch­diocese of Mil­wau­kee should not have to tap in­to its $50 mil­lion cemetery fund to pay for set­tle­ments with sexu­al-ab­use vic­tims, say­ing it would put a bur­den on the or­gan­iz­a­tion’s free ex­pres­sion of re­li­gion. His neut­ral­ity in the case was called in­to ques­tion when it was dis­covered Randa had pur­chased his par­ents’ plot in the Cath­ol­ic cemetery.

In his de­cision, Randa cited the Su­preme Court’s Cit­izens United de­cision, which loosened cam­paign fin­ance laws for polit­ic­al groups, in sid­ing with O’Keefe and the Club for Growth.

“The plaintiffs have found a way to cir­cum­vent cam­paign fin­ance laws, and that cir­cum­ven­tion should not and can­not be con­demned or re­stric­ted,” Randa wrote. “In­stead, it should be re­cog­nized as pro­mot­ing polit­ic­al speech, an activ­ity that is ‘in­grained in our cul­ture.’ “

But un­til Re­pub­lic­ans and Demo­crats in the state can agree on which be­ha­vi­or is cul­tur­ally ac­cept­able, and which is not, Wis­con­sin’s polit­ic­al fu­ture will con­tin­ue to be mol­ded by judges.

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