- - Wednesday, October 15, 2014

ANALYSIS/OPINION:

“We can’t let this happen.” That’s the message certain federal judges sent to partisan liberals who have been bending campaign-finance laws to silence opponents in the midterm elections. Courts in Denver and Wisconsin on Tuesday issued important orders to defend free speech, and just in time.

In Wisconsin, Democrats led by John Chisholm, a hyperpartisan state district attorney, filed an open-ended “John Doe” investigation obviously intended to damage Republican Gov. Scott Walker, a principled reformer running for re-election. Mr. Chisholm claims the governor coordinated speech on policy with outside conservative groups, violating contribution limits. Mr. Chisholm’s agents raided the homes of leading conservative activists across Wisconsin, seizing information to use against Republican candidates.

This is nothing short of a court-sanctioned fishing expedition with witches. The groups he targeted did not, in fact, coordinate anything, but making the charges stick was obviously never the prosecutor’s intent. The Democrats wanted to conjure a cloud of “being under investigation” to hang over Mr. Walker’s campaign.

The free-market group Citizens for Responsible Government wasn’t a target of the investigation, but it’s fighting back against the law that inspires such dirty politics. The organization wants to create a website called “Take Charge Wisconsin,” to help “non-career candidates” take on entrenched, big-government incumbents. So the group sued to overturn the law forbidding coordination as a violation of the First Amendment guarantee of free speech.

“The First Amendment exists precisely to stop government officials from threatening citizens who want to speak out and hold government accountable,” says David B. Rivkin Jr., the lawyer for the advocacy group.

U.S. District Judge Rudolph T. Randa agreed, issuing an order prohibiting Mr. Chisholm and his associates from attempting to enforce the anti-coordination statute at the heart of the Democratic effort to suppress conservatives. “In light of the important constitutional issues at stake,” said Judge Randa, “… The general election is only three weeks away. Any further delay threatens to negate the effectiveness of [Citizens for Responsible Government’s] requested relief.”

Urgency is on the minds of judges on a panel of the 10th U.S. Circuit Court of Appeals, too. The court issued an emergency injunction enabling Citizens United, a conservative group, to broadcast a documentary critical of several prominent Colorado Democrats.

Under Colorado law, only news organizations are allowed to criticize politicians without falling under the strict financial regulations that apply to political groups. That gives the advantage to The Denver Post, which usually endorses Democratic candidates, and keeps competitors out of the fray. Citizens United produced a documentary, “Rocky Mountain Heist,” to show how millionaires invested their cash to paint blue a state that had once been reliably red. Gov. John Hickenlooper and Sen. Mark Udall, both Democrats, are running for re-election.

The appellate judges said Citizens United has the same free-speech rights as a news organization. “The Colorado Secretary of State shall treat Citizens United in its capacity as a producer and distributor of films the same as a broadcast facility or publisher of a print periodical for purposes of the exemptions from the reporting and disclosure requirements of Colorado election law … .” the court said.

David N. Bossie, who heads Citizens United, is ready to exploit the decision. “Our film and its message are at the core of political speech protected by the First Amendment,” he says. “For far too long, Colorado’s campaign-finance laws have burdened some speakers while protecting others. [Tuesday’s] ruling is an important first step in overturning this discriminatory law.”

Since the Supreme Court’s first Citizens United decision, judges have been more willing to uphold free speech. That’s good news for everyone except abusers of the law, who are determined to silence their opposition.

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