How a "movement lawyer" is at work on the front lines with North Dakota's Water Protectors.
Art by Brad Dunlevy
In November 2013, a little-known conservative activist named Eric O’Keefe brazenly disobeyed a court order and leaked information to The Wall Street Journal editorial page about a secret “John Doe” investigation involving campaign finance violations by political operatives surrounding Wisconsin Governor Scott Walker. O’Keefe’s group, the conservative Wisconsin Club for Growth, was among the parties being investigated.
It was the beginning of an extraordinary scorched-earth campaign by O’Keefe to harass and undermine the John Doe investigators, who had targeted alleged illegal coordination between Walker and conservative groups including Club for Growth and Wisconsin Manufacturers and Commerce. But O’Keefe had a bigger goal in mind: overturning decades of established law in America saying that independent advocacy groups could not coordinate with political campaigns.
O’Keefe launched a series of suits against the prosecutors leading the investigation, continued to leak information about the probe, and publicly denounced it as a “partisan” attack on free speech. He went on conservative talk radio to accuse prosecutors of imposing “a traumatic, unconstitutional abuse on people” and compared those being investigated to “a rape victim”—adding, “I am saying this deliberately.”
Together with his lawyer, David Rivkin, O’Keefe pushed the idea that the John Doe investigators conducted early morning “paramilitary raids” violating the constitutional rights of those being investigated, and which resulted in stories in conservative publications like National Review. Stories of these abuses were discredited by an audiotape in which investigators treated their alleged victim politely. Yet a majority of the Wisconsin Supreme Court in July released an extraordinary ruling that shut down the John Doe probe, with three of the four-member majority citing unproven violations of constitutional rights.
The Club for Growth and Wisconsin Manufacturers and Commerce had together provided more than $8 million supporting these four justices in their last elections, accounting for anywhere from 48 percent to 76 percent of the total spent on each justice’s behalf. The justices returned the favor, writing a decision that seemed to ignore Wisconsin law and decades of U.S. Supreme Court decisions holding that independent advocacy groups cannot coordinate with political campaigns, since that would make them no longer independent.
It was a huge victory for O’Keefe and for Walker, one that has legalized the unlimited use of dark money in campaigns in Wisconsin and could influence how such cases are handled in other jurisdictions. Long after the end of Walker’s 2016 Republican presidential campaign, O’Keefe’s national aspirations still have legs.
“Wisconsin has sort of become ground zero for the testing of how far outside groups could coordinate with candidates,” says Tara Malloy, senior counsel for the Campaign Legal Center, a nonprofit advocacy group that has closely followed the Wisconsin fight. But she notes that what is happening here is part of a much larger conservative agenda. Across the country, Malloy says, “The envelope is being pushed on coordination in all areas.”
All of which has made O’Keefe a public figure, despite a long history of quietly effective conservative advocacy. He has been dubbed the “third Koch brother” for his efforts to lead and recruit donors to numerous advocacy groups connected to billionaire industrialists David and Charles Koch.
O’Keefe founded the Sam Adams Alliance, which has trained Tea Party activists. He helped establish a network of rightwing journalistic publications, hired lawyers who are gradually chipping away at legal restrictions on independent advocacy groups, and created groups to challenge Obamacare. Though poorer than the Kochs, he is arguably just as indispensable to the rightwing agenda.
O’Keefe, sixty-one, was born in Grosse Pointe, Michigan, a suburb of Detroit known as a wealthy community for auto executives. His father was an investor and Eric did well in the stock market, telling friends he was independently wealthy by age twenty-five. When David Koch ran as a Libertarian for vice president in 1980, O’Keefe served as the party’s national field coordinator. As The Washington Post reported, he “became friendly with the Koch brothers, with whom he has joined in many battles.”
O’Keefe has been at the center of a series of national rightwing policy efforts, including the fight for term limits and a so-called taxpayer bill of rights. Paul Jacob, executive director of U.S. Term Limits, has written that O’Keefe “should be known, but isn’t, as the man who came up with the plan to blitz the country with statewide ballot initiatives aimed at limiting the terms of politicians.”
O’Keefe was a founding board member of U.S. Term Limits, and also served as president of Americans for Limited Terms, which during the 1994, 1996, and 1998 congressional election cycles ran ads bashing candidates who opposed term limits. The movement also pushed twenty-three states to put congressional term limit initiatives in front of voters. The Koch brothers were “the main financial backers” of the effort, The New York Times reported.
Some $300,000 went into a series of attack ads targeting House Speaker Tom Foley, Democrat of Washington, for attempting to overturn the term limits law voters in his state had approved in 1992. The TV ads, relates O’Keefe on his website, “showed a tear rolling down the cheek of the George Washington face” on Mount Rushmore. Foley became the first Speaker to lose re-election since the Civil War.
O’Keefe also served on the board of Americans for Limited Government, founded in 1996 and funded by the Koch brothers. The group has backed “taxpayer bill of rights” ballot initiatives in Colorado and other states, with a goal of slashing state government spending. The group systematically savaged President Obama, calling him “‘the biggest liar of all” and comparing his vision of a national volunteer service agency to the Hitler Youth.
A fierce opponent of the McCain-Feingold law’s campaign finance restrictions, O’Keefe helped create the Center for Competitive Politics in 2005. The group filed briefs in Citizens United, the 2010 Supreme Court case that allows unlimited campaign donations by corporations and unions to the kind of independent advocacy groups O’Keefe has used to target incumbents for defeat. This greatly expanded the political might of these groups, many of which do not disclose their donors. OpenSecrets.org found that 72 percent of all such spending in 2014 was by conservative groups.
O’Keefe also launched the Health Care Compact Alliance to combat Obamacare and undermine Medicare and Medicaid by letting states use the funding as they wished. The group’s approach reinforced the anti-Obamacare ads by Americans for Prosperity.
The Sam Adams Alliance, which O’Keefe created in 2006, helped train citizen activists and bloggers and provided key support to the Tea Party, as did the Koch-funded Americans for Prosperity. In 2009, the group provided the seed money to create the Franklin Center for Government and Public Integrity, which has bankrolled a huge new network of conservative news publications. By 2012, Media Matters reported, there were “fifty-five news sites covering state government in thirty-nine states that have ties to the Franklin Center.”
The total amount of spending by the vast network of rightwing advocacy groups O’Keefe has helped create is unknown but formidable indeed. While much of the money came from the Kochs, O’Keefe has also “created a network of uber donors and of fundraisers,” says an O’Keefe sympathist who declined to speak on the record.
But when asked about concerns over wealthy donors spending fortunes to influence elections and government policy, O’Keefe told The Washington Post that voters don’t care. “That’s inside baseball,” he said.
R. J. Johnson, a longtime Republican operative, was likely the person who connected O’Keefe to Scott Walker, first elected governor in 2010. Walker’s campaign paid Johnson’s consulting firm more than $130,000 between July 2009 and January 2012. Johnson also worked as a top adviser to Wisconsin Club for Growth.
Just three days after Walker introduced his bill gutting collective bargaining for public employees in February 2011, the Center for Media and Democracy reported, “Wisconsin Club for Growth began running slick ads accusing state workers of not having to sacrifice, and urging support for the legislation to make state workers ‘pay their fair share.’ ”
When the bill passed, and opponents tried to recall a group of state senators and Walker himself, Club for Growth spent an estimated $9 million on the recalls, according to the Wisconsin Democracy Campaign. Johnson served as a key consultant to both Club for Growth and Walker’s campaign in his 2012 recall election.
That would seem to make it impossible for coordination not to have occurred between the two groups, and such coordination was then considered illegal in Wisconsin. Emails later showed that Walker secretly fundraised for the Club for Growth; his staff advised the governor to “stress that donations to [Club for Growth] are not disclosed.” Walker met with donors who soon contributed to Club for Growth.
There was every reason to believe the John Doe might succeed. It was actually the second probe involving Walker launched by Milwaukee County District Attorney John Chisholm, a reputed straight arrow who had previously angered Democrats by prosecuting several Democratic politicians. The first probe, which concerned Walker’s tenure as the Milwaukee County executive, led to the convictions of six people, including three members of his staff, for campaigning on government time.
While Chisholm was a Democrat, the special prosecutor he chose was Francis Schmitz, a longtime Republican who revealed that he voted for Walker in the recall election. Two Republican district attorneys and three chief judges of circuit courts with Republican credentials also took part in the multicounty, bipartisan investigation.
Yet Walker supporters condemned the probe as a “partisan witch hunt,” and this became a conservative mantra on talk radio and at WisconsinWatchdog.org, one of the rightwing news sites funded by the Franklin Center. To date, it has published more than 300 stories condemning the probe and repeating O’Keefe’s criticisms of it. Those criticisms have been echoed by The Wall Street Journal and National Review.
O’Keefe went on the offensive right away. He hired Rivkin, a top attorney in Washington, D.C., to sue Chisholm and all the prosecutors involved in the John Doe probe, accusing them of violating the civil rights of those under investigation and demanding personal damages from the prosecutors. A WisconsinWatchdog story cheered this, warning that Chisholm and company are “in for a very unpleasant time. He’s got a tiger by the tail, and he’s not up to it.”
O’Keefe and Rivkin launched a barrage of suits, tied the investigation in legal knots, and eventually brought it to a halt. Frank Gimbel, a top Milwaukee defense attorney for more than five decades who represented one of the Walker aides convicted in the first John Doe probe, marvels at what O’Keefe has done.
“I have not ever seen an individual being investigated who has gone on the offensive like this,” Gimbel says in an interview. “Most of the time it’s an uneven battle with the police and prosecutors. But he has gone on the offensive with very high quality lawyering.”
Malloy of the Campaign Legal Center agrees. “It’s definitely become a bit of an ugly personal fight,” she says of O’Keefe’s effort “to hold the prosecutors personally liable.” A federal appeals court rejected this line of contention, and the U.S. Supreme Court denied a petition for review.
To further frighten Chisholm, O’Keefe and other conservatives threatened to bankroll a recall effort against him. It never materialized, but the threat hung over his head for a year or so.
O’Keefe also put a scare into Walker. In June 2014, as news surfaced that the governor was seeking an out-of-court settlement to the Doe probe, The Wall Street Journal editorial page excoriated Walker, charging that while O’Keefe’s group “fights for its First Amendment rights to speak out on the issue, the Walker campaign apparently seeks to negotiate a settlement with the prosecutors that will keep the issue out of the spotlight.” It concluded: “Mr. Walker has to decide whose side he’s on—his own, or the larger principles he claims to represent.”
For O’Keefe and other conservative activists, Walker’s re-election was small potatoes compared to pushing the courts to kill restrictions on independent advocacy groups. Walker got the message, quickly backing off from talk of a settlement.
Walker’s collapse as a presidential candidate does not mean much to O’Keefe and company either. They have a loftier goal: doing away with campaign finance limits and other regulations that keep the wealthy from swaying elections.
Rivkin is probably the foremost proponent of the view that the First Amendment prohibits coordination between political campaigns and independent advocacy groups only when the groups expressly advocate for someone’s election, rather than simply running ads condemning or praising a candidate.
The U.S. Supreme Court, since the Buckley v. Valeo case of 1976, has repeatedly ruled that once groups have coordinated with campaigns the money they spend becomes subject to campaign finance disclosure laws. Yet the Wisconsin Supreme Court decision bought Rivkin’s argument and ignored both Buckley v. Valeo and a recent Seventh Circuit Federal Court of Appeals ruling on the John Doe which found that “no opinion issued by the [U.S.] Supreme Court, or by any court of appeals, establishes. . . that the First Amendment forbids regulation of coordination between campaign committees and issue-advocacy groups—let alone that the First Amendment forbids even an inquiry into that topic.”
Wisconsin Supreme Court Justice Patrick Crooks, who died suddenly in September, dissented in part from the court’s decision, calling it “erroneous” and “unprecedented.” As for O’Keefe’s complaint that the John Doe infringed on his First Amendment rights, Crooks wrote, “There is a simple solution to that problem: stop coordinating. In the absence of coordination, the contributor is free to discuss candidates and issues.” Crooks said the John Doe probe “should not be terminated.”
The ruling was a tremendous victory for O’Keefe, but there were more to come. In the fall of 2015, the Wisconsin legislature passed a law ending the use of John Doe probes into political corruption, a measure The New York Times dubbed “The Revenge of Scott Walker.” Another law dismantled the Government Accountability Board, a nationally praised nonpartisan watchdog of ethics and elections,which had been involved in the John Doe probe, replacing it with two toothless boards whose funding to pursue cases must be approved by the Republican-controlled legislature. A third law lets independent advocacy groups coordinate with candidates they favor, clearly violating past U.S. Supreme Court decisions, and even opens the door to express advocacy groups (which openly tell people how to vote) to coordinate with candidates, so long as the candidate doesn’t specifically ask that the groups spend campaign money in a certain way.
“This is a loophole large enough to drive a Koch Industries truck through,” declared Matt Rothschild, executive director of the Wisconsin Democracy Campaign. Another longtime observer of state politics, Jay Heck of the group Common Cause in Wisconsin, said the new laws, all of which Walker signed, were products of “the Eric O’Keefe session of the Wisconsin legislature.”
Malloy thinks the U.S. Supreme Court might consider a review of the case, seeing it as an opportunity to rethink its past positions and open the floodgates to new kinds of campaign activity. And, she says, “Walker’s departure from the presidential race can only improve slightly the case’s chance of being heard, because the issues are at least somewhat less politically ‘hot.’ ”
O’Keefe’s many legal and legislative victories will allow the nation’s wealthiest people and corporations to secretly bankroll the candidates and political outcomes they favor in Wisconsin. But his long-term goal is to achieve a similar victory in other jurisdictions and, ultimately, turn the entire country into a land where dark money rules all politics. ω