The John Doe investigation into conservative groups’ advocacy during the 2012 recall elections ended on July 16 with a bang, not a whimper. In a 4-2 decision, the Wisconsin Supreme Court’s majority opinion found the “prosecutor’s legal theory” that formed the basis for the investigation to be “unsupported in either reason or law.” Even more emphatically, the court said “it is utterly clear that the special prosecutor has employed theories of law that do not exist in order to investigate citizens who were wholly innocent of any wrongdoing.” Reread that sentence, and consider the implications of prosecutors creating new pretexts for how to use their power and authority to investigate ordinary people exercising their constitutional rights.
“Chilling” doesn’t begin to describe it.
Oddly, this view wasn’t shared by many liberal groups and organizations (all of which should reconsider any professed allegiance to liberalism). The Capital Times was typical, as it bellowed that the John Due ruling was “dangerous to democracy” and a sell-out to “corporate America’s dark-money groups.” With all due respect, this is ridiculous.
The groups targeted by the John Doe prosecutors were simply placing ads on television and other media (social and mainstream). These expenditures all went towards advocating opinions on issues, rather than directly contributing to a candidate, where restrictions on contributions apply.
Groups on the right, and the left, obviously have the right to express their opinions in the marketplace of ideas. They can also use available media to extend the reach of their views. These rights are not sacrificed or abridged if their perspectives happen to be similar to the opinions of Scott Walker, or Tom Barrett, on the same subject.
It is not credible to claim that a group expressing an opinion similar to a candidate’s is illegally “coordinating” with that candidate or providing an unreported in-kind contribution to their campaign, because such an interpretation severely restricts what that group would be allowed to say. The Supreme Court decision affirms this principle, finding that the prosecutors’ theory on coordination and unreported in-kind contributions “is both overbroad and vague and thus unconstitutionally chills speech.”
The Cap Times’ ominous “dark money” fears are also hugely overblown. Again, the money in question is only used to express opinions on issues of general interest. Contributions for “express advocacy” that go directly to candidates are still subject to strict limits. Money also flows into the political process from groups and individuals across the political spectrum, and there’s strong evidence from the nonpartisan opensecrets.org, which tracks money in politics, that Democrats rely far more heavily on support from large donors than do Republicans. The Koch brothers are pikers when compared to the unions or the fundraising giant ActBlue, which donates only to Democrats. Throw in year-round support from large philanthropic foundations, the mainstream media, Hollywood, the K-12 educational establishment and America’s 2,500 colleges and universities — all of which lean decidedly to the left and have an enormous impact on the climate of opinion — and the support given to conservative groups and scrappy free-market think tanks is a drop in the bucket. Confident progressives should welcome the intellectual competition.
Finally, and most fundamentally, the Supreme Court’s decision defends something more important than democracy: the rule of law. Democracy, after all, is primarily a process for selecting political leaders through elections, since America is a representative and not “pure” democracy (where there is a direct link between majority votes and government decisions). Elections are important, but they pale in significance to constraining government power via law. Officials must be bound by law or there is no limit to arbitrary and capricious government decisions that you are not free to ignore and which affect your day-to-day life. The rule of law safeguards the security and predictability we all rely on to pursue our daily affairs and plan for the future. It’s easy to take for granted, but spend any time in a place where it’s absent and you quickly discover its value.
America was founded as a government of laws, not men (or women). Of course, we fall short of this ideal almost continuously, but it’s still important to uphold. And this is precisely what the Wisconsin Supreme Court did when it struck down the John Doe investigation. The prosecutors were making it up as they went along, concocting novel legal doctrines and strained interpretations of existing statutes in order to snuff out speech they found distasteful and to punish political adversaries. This is the real danger, not allowing politically active groups on the right and left to spend as much as they like expressing ideas which may or may not be correct. Democracy can withstand tendentious issue ads, but not officials with the power to arrest who are allowed to make their own rules.
Larry Kaufmann is a Madison-based economic consultant.