After years of legal battles, First Amendment advocates in Wisconsin have scored a big win and it foreshadows victories coming soon to the Lone Star State.

In a 4-2 vote, the Wisconsin Supreme Court moved to shut down the unconstitutional and reprehensible John Doe Investigation carried out by pro-Union Democrats against conservative activists supportive of Wisconsin Governor Scott Walker. Democrat prosecutors, working in conjunction with the state’s Government Accountability Board (GAB) alleged that conservative groups, including the Wisconsin Club for Growth, had violated campaign finance (or so-called “ethics”) laws in their efforts to support Gov. Walker and his union-busting Act 10.

But the Wisconsin Supreme Court said that the GAB’s legal theories in the case were “unsupported in either reason or law.” The prosecutor had alleged that Club for Growth and other activists “coordinated” their issue advocacy with Walker’s campaign and that such coordination was illegal. However, the Wisconsin Court concluded that the John Doe prosecutor and the GAB “employed theories of law that do not exist in order to investigate citizens who were wholly innocent of any wrongdoing.”

In the course of the investigation, prosecutors dispatched SWAT teams to conduct pre-dawn paramilitary-style raids on the homes of activists, seizing private records, destroying property, and terrorizing families in the process. The Wisconsin activists were forced to risk imprisonment by breaking the unconstitutional gag orders in order to tell their story and fight back.

Here in the Lone Star State, the Texas Ethics Commission has mimicked Wisconsin’s GAB in attempting to silence speech protected by the First Amendment. TEC Commissioners Paul Hobby and Jim Clancy have moved forward on complaints lodged against Empower Texans by lieutenants of House Speaker Joe Straus that are based on legal premises even more dubious than those employed in Wisconsin. In short, the TEC and its allies allege that, because Empower Texans engages in too much speech about public officials and elections, the organization has morphed into a Political Action Committee.

The goal is simple: they seek such a ruling so they can force Empower Texans to disclose the names of its donors. Once they have the names, they hope to subject those donors to harassment and abuse to discourage them from giving. Without donors willing to support the organization, Empower Texans would be forced into silence.

Just like in Wisconsin, the Austin Court of Appeals has already ruled that the TEC’s theory in its case against Empower Texans is an “affront to the First Amendment.” But when confronted with that opinion, TEC Chairman Paul Hobby, a Democrat appointed to the Commission by Straus, told Empower Texans attorneys that the commissioners were “not there to read Third Court of Appeals opinions or call constitutional balls and strikes.”

The TEC would be smart to start paying attention to the rulings that are happening around them. The GAB and the John Doe prosecutors in Wisconsin didn’t just get a rude awakening from their Supreme Court. The opinion there was strong enough to foreshadow civil and criminal liability for the prosecutors and regulators. The same results are coming for those who disregard our constitutional order in this state.

The Wisconsin Supreme Court heaped praise on the citizens whose liberties were attacked and who chose to fight back:

“It is fortunate, indeed, for every other citizen of this great State who is interested in the protection of fundamental liberties that the special prosecutor chose as his targets innocent citizens who had both the will and the means to fight the unlimited resources of an unjust prosecution. Further, these brave individuals played a crucial role in presenting this court with an opportunity to re-endorse its commitment to upholding the fundamental right of each and every citizen to engage in lawful political activity and to do so free from the fear of the tyrannical retribution of arbitrary or capricious governmental prosecution.”

Empower Texans President Michael Quinn Sullivan has said it numerous times. The fight for the First Amendment here in Texas isn’t a fight that he chose, but it is one that he and Empower Texans are going to win. We may not have yet seen SWAT raids on the homes of conservative activists in this state, but TEC investigators have stalked and harassed Sullivan’s family, and demanded mountains of private documents. In the end, though, they will lose, and liberty of Texans will be secured.

Tony McDonald

Tony McDonald serves as General Counsel to Texas Scorecard. A licensed and practicing attorney, Tony specializes in the areas of civil litigation, legislative lawyering, and non-profit regulatory compliance. Tony resides in Austin with his wife and daughter and attends St. Paul Lutheran Church.


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