Why Judge Randa Smacked Down the John Doe Witch Hunt
Posted at RightWisconsin
We can Judge Randa’s decision halting the John Doe on two levels.
First, what is taking place in the Doe is extraordinary. Elected partisans initiated an investigation. They targeted only the other side and raided the homes of political activists under the cover of darkness. They told these activists that they could not tell their supporters or the public what had happened to them.
The result has been to sideline their political opponents during an election year. All of this seems predicated on a hyper-aggressive application of the law to constitutionally protected activity. If this doesn’t make you uncomfortable, I guess that civil liberties aren’t your thing.
On the second level – a more detailed analysis of the legal issues involved, yesterday’s decision addressed only the most obvious of a series of legal problems with this ill-conceived investigation. To understand, you need to appreciate one basic limitation and two long-standing distinctions in the constitutional treatment of campaign finance regulation.
The limitation is that, given the First Amendment interests at stake, there is only one justification for the government to ever restrict contributions or expenditures for political advocacy. That is to prevent quid pro quo corruption, i.e., the risk that the giving or spending of money will be done in exchange for political favors. No other policy objective – not "leveling the playing field" or "keeping money out of politics" – can justify restricting the exercise of these expressive and associational rights.
This brings us to the distinctions. The United States Supreme Court has long distinguished between contributions and expenditures. Contributions are regarded as more likely to raise concerns about quid pro quo corruption and are considered to be more indirect forms of political expression.
In contrast, expenditures by someone other than a candidate are seen as unlikely to give rise to the threat of corruption. More fundamentally, it is difficult to imagine any meaningful protection of speech that did not recognize the right to speak about issues and candidates at election time. Expenditures can almost never be restricted.
The other relevant distinction is between express and issue advocacy. The former is a call to elect or defeat a candidate while the latter is a communication about an issue – even if it mentions a candidate and occurs during election season. Issue advocacy is also seen as less likely to give rise to the threat of corruption and it too is core political speech. A democracy that did not permit people to speak on issues of the day during elections would be very different from the one we have.
You may not agree with these points but they are the law. Neither the Doe prosecutors nor Judge Randa are free to ignore them. Let’s apply them to this case.
The putative "targets" of the Doe investigation – Wisconsin Club for Growth and certain related individuals – engaged in expenditures comprising issue advocacy. In other words, their activities were entitled to the most stringent constitutional protection.
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