The Intimidation Game (30 page)

Walker's own recall fight made that look like small potatoes. It was the most expensive election in Wisconsin history; candidates and outside groups spent more than $80 million. Unions spent a lot, but the broad Republican coalition—from the Republican Governors Association, to the state chapter of the Chamber of Commerce, to the NRA, to Americans for Prosperity, to Tea Party groups—spent more. And in the end, Republicans ultimately held the state senate, and Walker got 53 percent of the vote. Instead of making an example of him, the unions made him a national hero and set him up for a presidential run.

Here was the rich part: As recall day approached, as the unions realized that Walker looked likely to win, the left smoothly switched messages. They moved from talking about Walker's collective bargaining reform to talking about the election itself. Liberals decried the “dark” money flowing into the state. Newspapers obsessed on the spending, calling Wisconsin Exhibit A of the supposed horrors of
Citizens United
. Groups like Public Integrity and Common Cause held up the Club for Growth and Wisconsin Manufacturers and Commerce (the chamber's state chapter) as examples of corrupt influences that were “buying” elections. The unions had spent all they had in Wisconsin, and the left didn't mind that—they don't mind big money. They only mind when the right has more of it.

Walker won his race on June 5, 2012. By mid-August, Chisholm had convinced a judge, Neal Nettesheim, to roll all the information from his prior John Doe into a brand-new probe into allegations of Walker-related campaign finance violations. Nettesheim also agreed to transfer the “existing” secrecy order.

Not that the first John Doe had remained secret. Somebody had leaked its existence in early 2012, clearly hoping it would damage Walker in his recall fight. Chisholm never had found a thing on the former county executive, but the leaks nonetheless spread rumors that criminal charges might be filed before the June 5 vote. Barrett, Walker's recall opponent, had a field day with that smear, brazenly declaring just two days before the recall that his opponent was “the only governor in this country who has a legal defense fund.” He still lost.

Walker still had to go through the normal reelection process in 2014. And the recall drive had given his opponents a new rationale for legally pursuing him: campaign finance “violations.” The Milwaukee DA's office spent another year ramping up what became known as John Doe II. In August 2013—at just about the time Walker's reelection effort began in earnest—Chisholm's office moved to give itself some political cover for the abuse that was about to come. It named a special prosecutor to head the investigation, a nominal Republican and thirty-year federal attorney named Francis Schmitz. Schmitz's role was to serve as the supposed independent head of the probe, to provide insulation against inevitable claims of a political witch hunt.

Schmitz started getting ready for October 3: subpoena and raid day.

Eric O'Keefe, now sixty, is one of those influential conservatives whom most Americans have never heard of. His interest in causes is a lot bigger than his ego. He's spent thirty years working behind the scenes—by choice. That's what made the John Doe situation, and the requirement that he go public, hard for him.

He grew up in Michigan, in a suburb just outside of Detroit. He hated high school and skipped college. But he'd spent his formative years watching Detroit plunge into decline, and became fascinated with public policy and politics. “I probably spent those years reading far more than all my buddies at college,” O'Keefe remembers. His self-education led him, by self-description, into “pretty radical libertarianism,” and he ended up serving as national director of the Libertarian Party in 1980, pushing the presidential ticket of Ed Clark and David Koch. That effort got less than 1 percent of the vote, and O'Keefe “learned the hard way that third parties are a waste of time.” He went back to the books to figure out why. “That's the history of my life,” he says with a laugh. “Charge, fight, lose, study.” He met his wife, and they ended up moving into an old farmhouse of her grandfather's in Spring Green, Wisconsin. They started having kids, and O'Keefe, who kept reading, started moving toward the conservative side.

In the early 1990s he helped spearhead the national campaign for term limits. The fight gave O'Keefe an opportunity to be among the pioneers of broadcast “issue ads”—those in which groups promote or criticize a cause, rather than a candidate. They were new in the post-Watergate era, and O'Keefe and his colleagues helped clarify a lot of free-speech ground, in terms of what kind of groups could run them, and what they could say.

The experience turned the operative into an expert on finance laws. “There was a lot of caution in the post-
Buckley
era. But we had a blast doing those ads, and they were effective, and the methods started to spread,” he remembers. He became convinced of the need to hold the parties—which were run by incumbents—more responsible and accountable to their voters, and became an activist for the rise of political organizations that are “controlled by donors” and engage heavily in primaries, elections, and policies. O'Keefe's view is that direct participation by these organizations—nonprofits, think tanks, 527s, the like—is the only way to keep politicians and government responsive.

He just as fervently believes that money is a foundational aspect of that. “It always bugs me, this obsession with political spending,” he says. “Campaign spending as a percentage of the federal budget is a flat line—and it is all of 0.02 percent. The left, they act like there is too much money in politics. Really? The feds spend $10 billion a day. We have yet to have any election cycle—even counting every dollar by candidates and groups and unions and all the issue ads—that comes close to that.

“And yet think about the stakes. We are electing a person who will control a country for four years, electing senators who will sit for six years. They don't mind blowing $10 billion a day for federal spending, but they act like spending a fraction of that to debate the fundamental question of our governance is over the top.”

O'Keefe cofounded the Campaign for Primary Accountability, which seeks to oust entrenched members of Congress. He's a founding board member of Citizens for Self-Governance, which seeks to elevate the grassroots. He's the chairman of the Health Care Compact Alliance, which seeks to shift more federal health dollars to states. He was the chairman and CEO of the Sam Adams Alliance, which promoted citizen activism. He's on the board of the Citizens in Charge Foundation. He sits on the board of the Center for Competitive Politics, which Brad Smith now runs, to help protect free speech. He definitely lives his philosophy.

O'Keefe had been active with the national Club for Growth since the mid-2000s, and briefly served on its board. He'd also agreed to sit on the Wisconsin state chapter board. That's where he met R. J. Johnson, and then Jordahl. He'd always been focused on national politics, but when the Walker fight erupted, his wife argued that a Wisconsin defeat would be a huge blow to the broader conservative reform effort. O'Keefe thought about it, then decided to go all-in politically in his home state.

He knew he'd lose his treasured privacy, so he threw up a fence around the farmhouse and installed an alarm. Then he shelved the national projects, cranked up the fund-raising machine, and took responsibility for the Wisconsin club. The organization would become a primary means of communicating to voters the merits of and stakes around Walker's reforms during the state senate recall fights. Notably, the Wisconsin club did not run any Walker-related ads during the governor's recall race.

The Senate races alone were enough to get Chisholm's attention.

Schmitz's subpoena heyday threw the Wisconsin conservative movement into a state of panic. Which was undoubtedly one of the goals. The subpoenas demanded pretty much every document from twenty-nine groups involved in the 2011 and 2012 recalls. But they also seemed part fishing expedition, since they demanded records stretching back to 2009—from before Walker even took office. They'd gone out to the Club for Growth, to the League of American Voters, to Wisconsin Family Action, to Americans for Prosperity–Wisconsin, to American Crossroads, to the Republican Governors Association, to Friends of Scott Walker, and to the Republican Party of Wisconsin—to name a few. The subpoena to Wisconsin Manufacturers and Commerce was so enormous the group had to hire a forensic team to copy all the required information from computers.

O'Keefe remembers another (in retrospect) amusing aspect of the subpoena aftermath: the scramble for lawyers. “The John Doe forbade communications between parties, and everybody had a conflict of interest with somebody else, and meantime there are only about three campaign finance lawyers in the state. You can't imagine the bizarre conversations going on.”

The subpoenas didn't spell out specific allegations, but there was little question what Schmitz and Chisholm were looking to prove. The argument was “illegal campaign coordination” by independent groups during the campaign. Campaign law barred candidates (in this case, Walker) from “coordinating” with independent groups engaged in express advocacy for the candidate.

But that's what made the John Doe investigation so bogus. That hadn't happened. The club hadn't run elect-Walker ads during the election. And the other groups hadn't run ads expressly calling for Walker's election, or calling for the defeat of Barrett. They had run “issue ads” that pointed out their own or the candidates' views on policies. Indeed, the prosecutors weren't claiming the standard definition of “illegal coordination.” They were instead trying to stretch what counted as a crime. Their big beef was that Walker had asked donors to give money to independent groups in the course of the campaign.

Indeed he had. Just as Obama had when in February 2012 his official campaign committee blessed fund-raising for a liberal super PAC that was supporting him for reelection. Obama not only put out the call for donors to give money to that group, but his cabinet members spoke at its fund-raisers. And just as Harry Reid had when he sent a letter in 2011 to donors telling them about a new “group solely devoted to leveling the playing field and protecting the Democratic majority in the Senate: Majority PAC.”

Obama and Reid hadn't got in trouble because this is legal by any standard definition. Outside groups are basically barred from turning over their dollars to a campaign. Beyond that, communication between groups and a campaign is kosher, as is coordination among outside players. It's not only kosher; it's protected by the First Amendment. The targets would later find out that prosecutors were also looking to redefine what counted as an “issue” ad, broadly claiming that any issue ad that was helpful somehow to a candidate was expressing advocacy on that person's behalf. They were looking at anything, hoping to make something stick.

It was only later that the victims would find out something else. Something huge. The prosecutors weren't in this alone. They were working in secret with Wisconsin's Government Accountability Board.

Wisconsin's legislature created GAB in 2007, in the wake of an ethics scandal that involved politicians from both state parties. It technically oversees elections, campaign finance laws, ethics, and lobbying. Its board is made up of six former, nonpartisan judges, appointed by the governor. But they all tend to lean a certain way, and the staff leans even more a certain way, and GAB has in a short time racked up an infamous reputation for pushing aggressive regulation of speech. That tendency was aided (until recently) by a Wisconsin campaign finance law that was among the more outdated in the nation. GAB was primed to become another weapon in the left's arsenal against conservatives. And the John Doe investigation made it exactly that. Later documents would suggest that GAB was working hand in hand with the prosecutors.

The first tip that GAB was in on the Doe probe came via one of the search warrants, which revealed that they had been executed based on the request of Dean Nickel, who had worked as an investigator at GAB. Documents would later show that GAB's board had in fact voted to officially investigate “illegal coordination” among the groups in June 2013—just as Chisholm was gearing up to hire Schmitz and issue subpoenas. But e-mails would also show that GAB staff, including GAB director Kevin Kennedy, had been working for at least ten months prior with the DA's office to target and intimidate the twenty-nine conservative groups. To this day it is unclear if GAB's board knew about this earlier staff work or had given approval.

Schmitz and the GAB folk certainly seemed to feel a bond. There's an e-mail on November 27, 2013, from GAB staff counsel Shane Falk to special prosecutor Schmitz. This was about two months after the subpoenas came out, and just after news broke of them. Falk tells Schmitz to “stay strong” in his efforts to take down Walker allies. “Remember, in brief, this was a bastardization of politics and our state is being run by corporations and billionaires,” he wrote. “That isn't democracy to say the least, but due to how they do this dark money, the populace never gets to know.” This was a pretty good insight into how the average GAB bureaucrat thinks.

“The cynic in me says the sheeple would still follow the propaganda even if they knew, but at least it would all be out there so that the influences on our politicians is clearly known,” continued Falk. By “the sheeple,” Falk meant Wisconsin voters.

Documents show that GAB staff was almost fervent in its desire to bring down Walker allies, and at one point contemplated serving subpoenas or warrants on conservative TV and radio talk show hosts. Notes from a September 2013 meeting refer to a “discussion raised by David regarding media exemption and identifying what the standards are before Sykes/Hannity coordinate with [Friends of Scott Walker] and Walker.” The “David” here appeared to be David Robles, an assistant DA in Chisholm's office. Sykes is a reference to influential Milwaukee radio host Charlie Sykes. Hannity is Fox News's well-known conservative host Sean Hannity. The conversation suggests that prosecutors were also suggesting some form of illegal “coordination” with the Walker campaign. The notes also includes “to-do” assignments for Robles and Schmitz and Falk—meaning that they, or representatives, were presumably all at the meeting.