Earlier this month, I and my colleagues at WILL filed an amicus brief in the civil rights case brought against the John Doe prosecutors. Our clients were Brad Smith, former Chair of the Federal Elections Commission and one of the country's leading academic experts on campaign finance law. We did not address the abstention and immunity issues that dominated the oral argument in the case last week. Our interest was in the constitutional problems created by the overly expansive interpretation of the law by the John Doe prosecutors.
We said that the First Amendment requires a narrow definition of what can constitute "coordination" between a candidate and an independent group engaged in speech. We argued that this is necessary both with respect to the "conduct" that might be considered coordination (i.e., it can't be fundraising, the use common consultants) and the "content" of speech that can be considered coordinated (i.e, it can't be issue advocacy) The reason, we said, was the the law would otherwise deter persons from exercising their constitutional rights to both speak to elected officials and candidates and to speak to the public. Wisconsin law does not provide an adequately narrow definition and must either be declared unconstitutional or limited to express advocacy, i.e., speech that can be interpreted in no way other than as a call to elect or defeat a candidate.
Perhaps the Seventh Circuit will not address that now, but, some day, either it or the Wisconsin Supreme Court is going to have to.
But the danger of the John Doe prosecutors expansive theory of "coordination" is illustrated in a recent piece by Dan Bice and Bill Glauber.
Here's what happened. Steve Einhorn, a local businessman, philanthropist and political activist, becomes interested in the question of voter fraud.* Rightly or wrongly, he believes that it happens and he wants to do something about it.
But he doesn't know exactly what happens when a person votes illegally so he asks Scott Walker, his County Executive and then a candidate for Governor, what the penalties for voter fraud are. He doesn't tell Walker what use he plans to make of the information and the Walker's response - from his constituent services staff - is factual.
Einhorn then takes the information and uses money from his family foundation to put up billboards reminding the public that voting illegally is a crime - much like billboards and public service ads remind us that shoplifting or drunk driving will get you in a great deal of trouble. The billboards mention no candidate for public office. Walker did not ask Einhorn to put the billboards up and, in fact, Einhorn never told Walker that he intended to do so.
Why is this a story?
Steve Einhorn had a constitutional right to speak to an elected official about an issue like voter fraud. He had a constitutional right to speak to the public about that issue. To suggest that exercising the first right cancels out the second is wrong from about every perspective I can think of. State law doesn't say so. Neither the state or federal constitution would permit it. It would be immoral to punish people for expressing their point of view. It would be bad public policy because it would suppress a free and open discussion of the issues.
But it's a story for two reasons.
One is that the John Doe prosecutors are wrong on the law and have launched a scorched earth investigation based on evidence of activities that aren't illegal and could not be made so. Even though I can't imagine that even they would say that this was a "coordinated" political communication, becoming part of the process - and the object of "breaking news" - becomes a punishment in and of itself.
The second is, that because they have launched this investigation into only one side of the political debate (based upon their expansive and erroneous view of the law, they could have easily started to investigate liberals and Democrats), there is a prurient and political interest in mucking about documents that should never have been disclosed. Give me the chance to go through tens of thousands of documents related to the political activities of Democrats, unions and liberal advocacy groups and I suspect there'll be a few interesting stories to tell, even if there is no more evidence of illegal activity than the Doe prosecutors have found.
The billboards have been criticized as an effort to suppress minority voters. Why is this so? Certainly the critics don't mean to suggest that minorities are more likely to vote illegally. We don't believe that reminding people that shoplifting is illegal dissuades them from entering stores. These billboards were not, as is often claimed, put up only in minority or Democratic neighborhoods, I saw one near my house in Mequon - an area where, near as I can tell, the only Democrat is my very nice neighbor, Frank.
Of course, it's alright to criticize someone's speech. If you hold the silly view that reminding people that state law does, in fact, make it a crime to vote illegally is some awful act, knock yourself out. But some one who stands up for an issue that he or she thinks is important, should not get dragged into a puffed up criminal investigation. Nice times we live in.
Cross posted at Purple Wisconsin.
*For what's it worth, I have worked with and quite like Steve and his wife Nancy, but I'd say the same thing about anyone in this situation.