Poor Scott Walker. The Wisconsin governor claims he is the victim of a “media frenzy” orchestrated by liberals who released documents in a John Doe investigation alleging he was at the center of a criminal fund-raising scheme. These are “the accusations of partisans within a Democrat district attorney's office” who cannot prove their case, and have therefore sought refuge in “the Court of Public Opinion," Walker wrote last week in a Milwaukee Journal Sentinel op-ed.
Walker’s contention that the case is now dead is flat wrong; the investigation targeting him is still under appeal. But the overlooked story here is the role of conservatives in the public chastisement of a rising star in the GOP firmament. The same activists who spent millions to help Walker survive a 2012 recall election strongly supported the release of the Doe documents—which have made the governor’s 2014 reelection less likely, to say nothing of his entering the 2016 Republican presidential primary—because their goals are even bigger than getting Walker elected president.
Sure, the governor is an important figure to these conservatives, but he is small potatoes compared to the legal feast they’ve long savored: overturning the restrictions on so-called “dark money” raised by their independent political advocacy groups. These conservatives are using the investigation against Walker to launch a frontal assault against laws barring electoral candidates from coordinating with third-party advocacy groups (as Walker is accused of doing). They hope to appeal the case all the way to the U.S. Supreme Court, which has been receptive to challenges of campaign-finance restrictions.
Their key strategist is Eric O’Keefe, a smart, wealthy, tactically sophisticated political activist and longtime associate of the Koch brothers. Their connections go back to at least 1979, when David Koch ran for vice president on the Libertarian ticket and O’Keefe worked full-time on the Libertarian presidential campaign, rising to national field coordinator and, in 1980, to national director of the party.
O’Keefe is independently wealthy and has worked for decades as a political activist crusading against the power of political incumbency, in favor of term limits and against the post-Watergate campaign-finance law, whose “actual intent ... was to handicap challengers and therefore entrench incumbents,” he has written. David Koch felt the same way: The law “makes my blood boil,” he wrote in a letter to Libertarian Party members. O’Keefe went on to join, fund, and often found a long list of interconnected political organizations, many also connected to the Koch brothers, including the Center for Competitive Politics, one of the leading right-wing groups fighting against limits on money in politics.
Under the law, donors to political campaigns must be disclosed, but the identity of donors to independent advocacy groups can be kept secret, so long as these groups do not expressly advocate an election result or coordinate with candidates. Thus, the Wisconsin Club for Growth, run by O’Keefe (who lives in Spring Green, Wisconsin), spent lavishly on ads to support Walker and his policies without expressly urging citizens to vote for him.
But there is evidence O’Keefe’s group was coordinating with Walker’s 2012 campaign; both groups shared the same Republican strategist, R.J. Johnson. So a John Doe investigation was launched by Democratic Milwaukee County District Attorney John Chisholm and several other Wisconsin DAs, including two Republicans. O’Keefe was among the targets, and he decided to fight back, charging the investigation had targeted conservative activists “to stop their political successes in Wisconsin,” and “silence political speech it does not like.” O’Keefe has hired a team of lawyers led by high-profile Washington attorney David Rivkin to launch a federal suit against the John Doe investigators for violating the civil rights and freedom of speech of O’Keefe and the other targets of the John Doe.
Though the law prevents subjects of a secret John Doe investigation from discussing it publicly, O'Keefe admitted to the Wall Street Journal to being subpoenaed, and the paper then wrote editorials condemning the probe. This allowed Walker’s supporters to dismiss the probe as a “partisan witch hunt,” but it also began to make a secret Doe probe an increasingly public affair. With the probe now part of a federal lawsuit, which is not secret, the various legal documents in the case were heavily redacted, even as they made their way on appeal to the Seventh Circuit of Appeals. Media organizations petitioned the court to make the records public.
And then a funny thing happened. None of the lawyers objected to this. Not Chisholm’s John Doe team, who probably saw this as an opportunity put heat on Walker and to show the investigation had substance. And not O’Keefe’s lawyers, who saw it as a way to make their argument against the hated rules restricting third-party advocacy groups. As Andrew Grossman, another attorney working for O’Keefe, would later put it, “These documents show how the John Doe prosecutors adopted a blatantly unconstitutional interpretation of Wisconsin law... to launch a secret criminal investigation targeting conservatives throughout Wisconsin... Sunlight is the best disinfectant.”
The one lawyer who would have no doubt objected was Stephen Biskupic, representing Walker’s campaign, which polls show had become a dead heat. But the campaign was not a party to the federal lawsuit. Biskupic, however, would have known that the lawyers, in their filings, had not objected to release of the Doe documents and their accusations against Walker. And soon after those filings were made, the news came out that Biskupic was trying to cut a deal with the Doe prosecutors to settle the case against his client. The disclosure came, once again, from O’Keefe’s reliable ally, the Wall Street Journal, whose editorial page excoriated Walker, saying he “has to decide whose side he’s on... While the Club (for Growth) fights for its First Amendment rights to speak out on the issue, the Walker campaign apparently seeks to negotiate a settlement with the prosecutors that will keep the issue out of the spotlight.”
A condemnation from the Journal is, of course, a nightmare prospect for anyone hoping to run as a Republican presidential candidate. Walker initially offered a legalistic response while not denying the attempt at a deal, which brought another editorial spanking (“Sorry, that’s disingenuous”) from the newspaper. Walker then backed down entirely, saying, “I'm certainly not going to undermine anyone's First Amendment rights. I'm frankly kind of shocked for anyone to suggest that."
O’Keefe's goal was made clear by the second Journal editorial: "The stakes in the federal lawsuit ... are bigger than Mr. Walker's campaign. They concern the prosecutorial machine that exists in Wisconsin, and in too many other states, to punish and limit political speech that is protected by the First Amendment.” In summoning this image of Big Brother–like prosecutors mowing down our right to free speech, the paper was simply seconding the claims of O’Keefe and his lawyers, that groups like Wisconsin Club for Growth, as long as they don’t expressly advocate how people should vote, can coordinate with campaigns of political candidates. This would completely change how the law has treated these groups for decades, yet federal district court judge Rudolph Randa accepted the argument. O’Keefe and the Club for Growth “have found a way to circumvent campaign finance laws,” Randa wrote approvingly, “and that circumvention should not and cannot be condemned or restricted. Instead, it should be recognized as promoting political speech.”
Now the case is getting reviewed by the Seventh Circuit Court of Appeals. Whichever way it rules, the decision is likely to be appealed to the U.S. Supreme Court, which has showed an increasingly dim view of any campaign-finance restrictions. Since the 1970s, O’Keefe and David Koch have wanted to overthrow those restrictions entirely, and if it requires a political black eye or even a gubernatorial defeat for Scott Walker, well, that’s a small price to pay to greatly enhance the power of wealthy, secret donors who crave more "freedom of speech."