By Brendan Fischer on March 25, 2014

Wisconsin Club for Growth's allegations that prosecutors in the John Doe campaign finance probe have engaged in politically-motivated "selective prosecution" don't stand up to even limited scrutiny.

On February 10, Wisconsin Club for Growth (WCFG) and its director Eric O'Keefe filed a lawsuit in federal court challenging the John Doe probe as a violation of the First and Fourteenth amendments, and alleging that John Doe prosecutors have "singled out Plaintiffs as targets for investigation, ... while others similarly situated were not targeted."

John Doe prosecutors are reportedly pursuing a theory of illegal electoral coordination during Wisconsin's 2011 and 2012 recall elections between candidates such as the Walker campaign and "independent" groups like WCFG, which spent $9.1 million on election ads during the recalls and funneled millions more to other politically-involved groups.

WCFG devotes seven pages of its federal complaint to what it calls "materially identical" conduct by Democrats or liberal groups, which it claims shows that WCFG and other "targets of the investigation were selected based on political views and associations."

Yet a review of the alleged acts of impropriety demonstrates that WCFG is grasping at straws. Many of the alleged acts of impropriety did not violate Wisconsin law. Others were investigated and dismissed. Others lacked any documentation.

In one example, WCFG claims that "coordination" between a gubernatorial candidate, Kathleen Falk, and an independent group, Wisconsin for Falk, is "clearly demonstrated" by footage of Falk appearing in a Wisconsin for Falk ad -- despite the 2012 "Wisconsin for Falk" ad in question clearly recycling footage from Falk's 2006 Attorney General campaign. Another example of alleged coordination is based entirely on a conversation outside of a bar, secretly recorded by a Walker staffer who lied about his name and occupation, and which did not violate any laws, according to experts from both ends of the political spectrum. Another claim of liberal "coordination" was premised on a complaint that the Government Accountability Board rejected as "frivolous."

Taken on its face, it is an extraordinary request to ask a federal court to halt an ongoing state criminal investigation conducted under state law. Federal courts usually defer to state institutions to interpret and apply the laws in that state, and the argument for abstention is powerful in a case like this, which hinges on dueling interpretations of Wisconsin's campaign finance statutes.

The "selective prosecution" allegations -- along with WCFG's lengthy rewrite of Wisconsin history -- are part of an effort to show that the investigation is being conducted in bad faith, as partisan retaliation for WCFG exercising its "free speech" rights. Such a showing is necessary to convince a federal court to take the extraordinary step of interfering with a state investigation.

WCFG's effort is a strained one.

WCFG's allegations about "materially identical" conduct by liberal groups show a "careless disregard for the facts and what actually happened," Jay Heck, Executive Director of Wisconsin Common Cause, told the Center for Media and Democracy. It is "not intended to be taken seriously in court, but instead designed to create resentments and build anger against anybody who doesn't agree with WCFG and Eric O'Keefe," Heck said.

Below, we describe WCFG's weak "double standard" allegations.


WCFG "Selective Prosecution" Allegations Don't Stand Up to Scrutiny

WCFG's allegations of a double standard begin with the first John Doe investigation into illegal campaigning by Walker's staff during his time as Milwaukee County Executive (which netted six criminal convictions), and flow into the second John Doe probe into possible illegal coordination during the recalls between "independent" groups and the Walker campaign.

Alleged Coordination Between Kathleen Falk and "Wisconsin for Falk"

On March 25, 2012, Daniel Bice of the Milwaukee Journal Sentinel reported that Wisconsin for Falk had come "almost out of nowhere" and "blitzed" local airwaves with $1.6 million of television advertisements to favor Kathleen Falk. ... the candidate appeared in the advertisements, directly staring at the camera, clearly demonstrating that Falk worked with this group to film the ads.

Although WCFG claims that Falk looking into the camera "clearly demonstrat[es] that Falk worked with this group to film the ads," the 2012 "Wisconsin for Falk" ad in question in fact clearly uses footage from Falk's 2006 Attorney General campaign. This is most obviously demonstrated by her haircut: the "Wisconsin for Falk" ads showed Falk with the short hair she had in 2006, rather than the longer cut she was wearing in 2012. Compare Falk in this ad from 2006 with the 2012 "Wisconsin for Falk" ad spot (and contrast it with Falk's own 2012 ads).

Alleged Coordination Between Unions and Democrats in 2010

WCFG writes in its federal court filing:

In September 2010, the Milwaukee Journal-Sentinel reported that unions and Democratic candidates were coordinating a plan to attack Scott Walker for neglecting county facilities in connection with a parking garage incident. ... the Wisconsin Republican Party filed a formal complaint with GAB alleging illegal coordination.

The Milwaukee Journal Sentinel story in question was entirely premised on a conversation outside of a bar on a Friday night, secretly recorded by a Walker staffer who lied about his name and occupation. No ads were ever run, and election law experts from both ends of the political spectrum consulted by the Milwaukee Journal-Sentinel agreed that no election laws were broken. (In fact, one of the election law experts who said that no laws had been violated, Marquette Law Professor Rick Esenberg, is highly critical of the John Doe probe).

Senator Hansen Allegedly "Coordinating" With Independent Groups

in summer of 2011, a complaint was filed with GAB against Friends of Senator Hansen, a Democratic incumbent, alleging coordination with liberal groups. The complaint states "Any person with eyes can see after reviewing the material sent to homes, or from watching TV advertisements sponsored by these various groups, that a direct violation of campaign law has occurred."

According to the Government Accountability Board (GAB) report, "the basis for the complaint is the similarity of the ads. Without more, there does not seem to be any basis for an investigation."

The GAB did, however, "warn complainant Dave Boyce about filing a frivolous complaint." Boyce, a Green Bay alderman, had circulated petitions to recall Hansen but is perhaps best known for his crusade to try banning saggy pants.

Shelly Moore Allegedly Using School Resources for Her Campaign

In 2011, the Wisconsin Republican Party filed a complaint with GAB regarding Shelly Moore, a Democratic candidate for government and a public school teacher. The complaint alleged that she used school equipment, including her computer, for her recall campaign. ... Defendants did not investigate this Moore's conduct.

The GAB did in fact investigate the Republican Party's complaint, and found "there is not probable cause to believe Ms. Moore's use of the school e-mail system amounted to a campaign contribution to her campaign for office, or a campaign contribution to any other political committee."

According to the GAB's investigation, the emails in question were sent months before Moore ever became a candidate, and the emailed discussions related to the circulation of recall petitions, rather than organizing a campaign. This hardly rises to the level of planning campaign fundraisers on public time or using a secret email system, as WCFG alleges.

Notably, both Wisconsin Club for Growth and Citizens for a Strong America ran ads attacking Moore during the race.

Sandy Pasch Allegedly "Coordinating" With Citizen Action

On August 2, 2011, the Republican Party of Wisconsin filed a complaint with GAB asking for an investigation of "possible coordination" between representative Sandy Pasch and Citizen Action of Wisconsin, where Pasch serves on the board of directors.

The GAB investigated this complaint, but dismissed it, finding "there is no evidence that Citizen Action of Wisconsin acted in cooperation or consultation with Ms. Pasch, [campaign treasurer Jackie] Boynton, or anyone else associated with the Pasch campaign on any independent disbursements."

CMD Allegedly Admitted Liberal Groups Engaged in Same Activity, but Activity Was "Distinguishable"

One of the many glaring inaccuracies is directed at the Center for Media and Democracy, publishers of PRwatch.org, and its Executive Director, Lisa Graves. WCFG asserts that on a November 2013 press call:

One reporter asked about the investigation and whether the same activity being investigated had occurred among liberal and Democratic groups. Graves's response indicated that such activity did occur, but was distinguishable ... .

As CMD has previously documented, this never happened. The call, the reporter's question, and Graves' response were about funding sources for state and national think tanks. Graves was never asked about the John Doe investigation, never said anything about the criminal probe or electoral coordination, and never claimed that liberal groups engaged in electoral activity at all similar to the conduct under investigation.

CMD Allegedly Engaged in Unreported Lobbying

Elsewhere, WCFG alleges that:

AFL-CIO's annual report filed with the Department of Labor in September 2012 shows a $69,500 expenditure to the Center for Media and Democracy under Schedule 16 for "Political Activities and Lobbying," ... [but] the Center for Media and Democracy, which is a 501(c)(3), was not a registered lobbyist at the relevant time period, and top staffers of the group were not registered as individual lobbyists. Lobbying without the proper registration violates Wisconsin state law, but the Defendants did not investigate this appearance of impropriety.

There was nothing to investigate. CMD received a donation in 2012 to support its research regarding lobbying by corporations and others, but does not lobby Wisconsin legislators about Wisconsin bills. It is false to allege that CMD illegally spent tens of thousands of dollars lobbying. In alleging that it was selectively prosecuted, WCFG implies that CMD has engaged in conduct "materially identical" to the alleged criminal activity under investigation in the John Doe, but CMD does not engage in electioneering, does not run TV ads, and does not engage in any of the activities reportedly under investigation.

Alleged Coordination Between Democratic Party, Unions, and Others

On November 19, 2011, the Committee to Recall Scott Walker, a left-leaning political committee ... announced a gathering to kick off the Walker recall effort. The event was widely announced as being "[i]n coordination with We Are Wisconsin, United Wisconsin, and the [Democratic Party of Wisconsin]...." ... This activity was reported in November 2011 as raising questions about United Wisconsin's "independence."

Like many of the alleged improprieties by liberal groups, WCFG's inclusion of this example seems directed to the right-wing blogosphere rather than the court. We Are Wisconsin, United Wisconsin, and the Democratic Party made no secret of working together, and unions did not hide their support for the recall. WCFG does not claim that these activities were illegal, so it is unclear why WCFG is implying that these groups should have been investigated.

Barrett Campaign Spokesperson Hired in Mayor's Office

WCFG notes that Walker's opponent in the 2010 and 2012 elections, Milwaukee Mayor Tom Barrett, hired his campaign spokesperson to work in his city office in 2010, yet "The District Attorney's Office did not investigate this appearance of impropriety." The practice of campaign staff getting jobs in a politician's administration is common across the political spectrum, but those that do must strictly separate their official and campaign activities -- since those that don't can go to jail, as Walker's former aides can attest. WCFG does not make any specific allegations of wrongdoing in Barrett's office, nor does it claim that any complaints were filed.

No Double Standard on Blogger Prosecution

One of the top allegations in the complaint refers to a supposed double standard on prosecutions in the first John Doe investigation. Referring to Darlene Wink, a staffer in Walker's County Executive office, and Kelly Rindfleisch, a former top aide to Walker, WCFG writes in its complaint:

In spring 2010, the Milwaukee County District Attorney's Office declined to prosecute a county employee named Christopher Liebenthal, who was caught engaging in "excessive political blogging" for liberals from his taxpayer-funded computer. ... The decision by Defendants Chisholm and Landgraf to treat this conduct as a personnel matter is completely different from how they treated indistinguishable conduct by Wink and Rindfleisch. Each was charged criminally on multiple counts, and Rindfleisch was sentenced to jail time for similar conduct treated as a "personnel" matter in Liebenthal's case.

Prosecutors hardly gave Liebenthal a free pass. Like Wink and Rindfleisch, Liebenthal's computer was confiscated by prosecutors. But the investigation into Liebenthal showed no criminal activity, and he was hardly engaged in "similar conduct" as the former Walker staffers.

Wink was initially investigated for posting pro-Walker comments to news articles while at work in the County Executive office, but the probe soon revealed the existence of a secret email system set up in Walker's office that was used by Walker staffers to do campaign work on public time. The criminal complaint against Wink was not premised on her posting online comments, it was based on extensive evidence that she was organizing fundraisers for Walker, writing press releases, and communicating with campaign staff while being paid by taxpayers time and using taxpayer resources. The criminal complaint against Rindfleisch charged her with four counts of misconduct in public office; online chats included in the complaint showed Rindfleisch bragging about being hired as a taxpayer-funded "Poilcy Advisor" in Walker's office but spending half of her time on campaign work, using the secret email system.

This was hardly comparable to an individual updating a personal blog on his own time, and who was not working in a candidate's office or connected to a political campaign.

Liebenthal writes of the WCFG allegations:

the utterly misnamed Citizens for a Responsible Government, had filed a criminal charge against me in an effort to distract from the heat of Darlene Wink and Tim Russell getting caught campaigning on county time. The charge was quickly dropped when it was seen that not only was I not seeking political contributions or doing campaign work like Wink, Russell and Rindfleisch, but I wasn't even blogging as I was accused of.

The group that filed the complaint against Liebenthal, Citizens for a Responsible Government, is funded by Wisconsin Club for Growth.

"A quick review of the dates that CRG was accusing me off were furlough days, vacation days and even major holidays like Memorial Day and Labor Day," Liebenthal wrote.

WCFG's Allegations Are "Manufactured Outrage"

Other allegations also don't stand up to scrutiny.

WCFG lists multiple complaints filed with the GAB by the Republican Party of Wisconsin alleging coordination between Democratic candidates and independent groups, but provides zero supporting evidence, and never alleges that the GOP's complaints were not investigated. Both parties regularly file GAB complaints against candidates from the other party, even if there is little chance of a prosecution, says Common Cause Wisconsin's Heck. Such complaints are "pure partisan maneuvering and politics," Heck says. "In and of themselves, these [partisan] complaints are almost meaningless."

WCFG's complaint is "more for their own side's consumption rather than anything that they expect to take seriously by objective observers," Heck says. "They are trying to do nothing more than cast a long shadow of doubt on the John Doe investigation."

"Just manufactured outrage, is what it is."

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By Wendell Berry

Manifesto: The Mad Farmer Liberation Front

Love the quick profit, the annual raise,
vacation with pay. Want more 
of everything ready made. Be afraid 
to know your neighbors and to die.
And you will have a window in your head.
Not even your future will be a mystery 
any more. Your mind will be punched in a card 
and shut away in a little drawer.
When they want you to buy something 
they will call you. When they want you
to die for profit they will let you know. 
So, friends, every day do something
that won’t compute. Love the Lord. 
Love the world. Work for nothing. 
Take all that you have and be poor.
Love someone who does not deserve it. 
Denounce the government and embrace 
the flag. Hope to live in that free 
republic for which it stands. 
Give your approval to all you cannot
understand. Praise ignorance, for what man 
has not encountered he has not destroyed.
Ask the questions that have no answers. 
Invest in the millennium. Plant sequoias.
Say that your main crop is the forest
that you did not plant,
that you will not live to harvest.


Say that the leaves are harvested 
when they have rotted into the mold.
Call that profit. Prophesy such returns.
Put your faith in the two inches of humus 
that will build under the trees
every thousand years.
Listen to carrion—put your ear
close, and hear the faint chattering
of the songs that are to come. 
Expect the end of the world. Laugh. 
Laughter is immeasurable. Be joyful
though you have considered all the facts. 
So long as women do not go cheap 
for power, please women more than men.
Ask yourself: Will this satisfy 
a woman satisfied to bear a child?
Will this disturb the sleep 
of a woman near to giving birth? 
Go with your love to the fields.
Lie easy in the shade. Rest your head 
in her lap. Swear allegiance 
to what is nighest your thoughts.
As soon as the generals and the politicos 
can predict the motions of your mind, 
lose it. Leave it as a sign 
to mark the false trail, the way 
you didn’t go. Be like the fox 
who makes more tracks than necessary, 
some in the wrong direction.
Practice resurrection.

Wendell Berry is a poet, farmer, and environmentalist in Kentucky. This poem, first published in 1973, is reprinted by permission of the author and appears in his “New Collected Poems” (Counterpoint).

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