Amicus Brief in Three Unnamed Petitioners v. Peterson (The John Doe Cases)
Benjamin Barr, Stephen Klein & Matthew Fernholz

Filed:
March 19, 2015; re-filed April 2, 2015 (Wisconsin Supreme Court)

Issue:

May a criminal prosecution be founded on a theory that coordinated issue advocacy constitutes a regulated “contribution” under Wisconsin Law?

Summary:

Wisconsin prosecutors, engaging in a secret “John Doe investigation” normally reserved for pursuing organized crime activities and other wrongdoings, instigated police raids on numerous homes and seized computers, cellular phones and documents in an effort to determine whether certain politically-minded citizens and groups had engaged in illegal campaign finance “coordination” with, presumably, Wisconsin Governor Scott Walker’s campaign. The investigations represent the pinnacle of the lengths to which prosecutors will go to use campaign finance investigations to punish free speech.

WyLiberty’s brief illustrates the dangerous, unconstitutional basis upon which this investigation is based.  As the brief discusses, Wisconsin’s prohibition on “coordination” is so overbroad it could be used to punish everyone from Boy Scout troops to established politicos simply for engaging candidates and officeholders the wrong way. Engaged citizens would have to choose between advocating for issues or for candidates, as doing both the wrong way could easily be considered “coordination.” The wrong speech could even infringe upon the free press.

As the brief notes, “[w]hen constitutional standards deteriorate, prosecutions that closely resemble political persecutions become the norm.” This is the most all-encompassing campaign finance inquisition yet. We can only hope it the last.

Click here to read WyLiberty’s brief.

Procedural History:

• On March 19, 2015, WyLiberty attorneys filed the brief in the Wisconsin Supreme Court.
• Shortly after its filing, attorneys for certain parties objected to factual materials referenced and included in WyLiberty’s brief, asserting the brief violated the gag order that is part of the John Doe investigation. To avoid risk of having its brief rejected on these grounds, WyLiberty filed a revised brief on April 2, 2015.
• On July 16, 2015, the Wisconsin Supreme Court ruled in a 4-2 decision that the investigation was based on vague and overbroad interpretation of Wisconsin’s law, and ruled that the investigation must be halted. The court unanimously accepted WyLiberty’s brief.