Gov. Scott Walker Credit: Associated Press

SHARE Poll Do you agree with the judge's decision to halt John Doe probe into Walker recall? Yes No vote View Results Yes: 52% No: 48% Total Responses: 6824

By of the

A federal judge ordered a halt Tuesday to the John Doe investigation into campaign spending and fundraising by Gov. Scott Walker's campaign and conservative groups, saying the effort appeared to violate one of the group's free speech rights.

In his 26-page decision, U.S. District Judge Rudolph Randa in Milwaukee told prosecutors to immediately stop the long-running, five-county probe into possible illegal coordination between Walker's campaign, the Wisconsin Club for Growth and a host of others during the 2011 and 2012 recall elections.

"The (Wisconsin Club for Growth and its treasurer) have found a way to circumvent campaign finance laws, and that circumvention should not and cannot be condemned or restricted. Instead, it should be recognized as promoting political speech, an activity that is 'ingrained in our culture,'" Randa wrote, quoting from a recent U.S. Supreme Court decision.

He ordered an immediate halt to the investigation, the return of all property seized during it, and the destruction of any information and materials gained in the investigation. He told the Wisconsin Club for Growth it did not need to cooperate with prosecutors in any way.

Special prosecutor Francis Schmitz, who was leading the investigation, said late Tuesday he expects to challenge the decision by appealing to the 7th Circuit Court of Appeals in Chicago.

"I'm virtually assured we will appeal this decision," Schmitz said. "I have to consult with the others and my attorney" before making a final decision.

The investigation's focus on Walker and the Wisconsin Club for Growth has been clear for some time, but Randa revealed investigators also were probing candidates for state Senate and that "all or nearly all right-of-center groups and individuals in Wisconsin who engaged in issue advocacy from 2010 to the present are targets of the investigation."

Subpoenas have been issued around the country, according to the judge.

Specifically, investigators have been scrutinizing the activities of R.J. Johnson, a consultant for both Walker's campaign and the Wisconsin Club for Growth. Prosecutors described him as a "hub" who coordinated activities for Walker's campaign and groups such as Citizens for a Strong America, Wisconsin Right to Life and United Sportsmen of Wisconsin, according to Randa.

Milwaukee County District Attorney John Chisholm, a Democrat, launched the probe in mid-2012, shortly after the conclusion of the recall elections sparked by Act 10, which curbed collective bargaining for public workers. In the most prominent race, Walker became the first governor in the country's history to survive a recall election.

John Doe probes are overseen by judges and allow prosecutors to compel people to produce documents and give testimony, as well as bar them from talking publicly about the investigation.

Last summer, prosecutors from Columbia, Dane, Dodge and Iowa counties agreed to join the investigation, as did the state Government Accountability Board. Shortly thereafter, Schmitz was appointed special prosecutor in the case, which is being overseen by former Appeals Court Judge Gregory Peterson.

"I really have no comment at this time," Peterson said late Tuesday.

Wisconsin Club for Growth and one of its directors, Eric O'Keefe, filed their federal suit in February against prosecutors, investigators and Peterson, contending the investigation violates their constitutional rights to free speech and free assembly.

In his ruling Tuesday, Randa said prosecutors are using an unconstitutional legal argument in pursuing the investigation.

"The plaintiffs have been shut out of the political process merely by association with conservative politicians," wrote Randa, who was appointed to the bench in 1992 by President George H.W. Bush. "This cannot square with the First Amendment and what it was meant to protect."

Randa wrote of the urgency of the case, because prosecutors essentially shut down Wisconsin Club for Growth's right to free speech during an election year.

Prosecutors contend that the Wisconsin Club for Growth is acting as a subcommittee of Walker's campaign — and thus must report its spending on behalf of Walker and adhere to fundraising limits, Randa wrote. He called that viewpoint "simply wrong."

When it comes to political speech, Randa wrote, the government may regulate only "express advocacy" — that is, ads or other communications that explicitly urge people to vote for or against a candidate. But Wisconsin Club for Growth and groups like it engage in "issue advocacy" — communications that promote or denigrate candidates without coming right out and saying how people should vote.

The government can regulate express advocacy only because of the danger of "giving government an expanded role in uprooting all forms of perceived corruption which may result in corruption of the First Amendment itself," Randa wrote.

"As other histories tell us, attempts to purify the public square lead to places like the Guillotine and the Gulag."

Campaign finance laws can be used to prevent tit-for-tat corruption or the appearance of it, but nothing else, Randa wrote. The activities at issue in the investigation don't rise to that level, he found.

"O'Keefe and the Club obviously agree with Governor Walker's policies, but coordinated ads in favor of those policies carry no risk of corruption because the Club's interests are already aligned with Walker and other conservative politicians," Randa wrote. "Such ads are meant to educate the electorate, not curry favor with corruptible candidates."

Randa's ruling referred frequently to Citizens United, the 2009 U.S. Supreme Court case that found corporations can spend limitless sums in elections, and to a high court ruling last month that eliminated the overall limit on what individuals can give toward congressional races.

Randa's decision revealed new details of the probe, including an Oct. 3 raid of the homes of Johnson and Deborah Jordahl, another consultant to the club. Neither could be reached for comment.

"Sheriff deputy vehicles used bright floodlights to illuminate the targets' homes," Randa wrote. "Deputies executed the search warrants, seizing business papers, computer equipment, phones, and other devices, while their targets were restrained under police supervision and denied the ability to contact their attorneys."

"Among the materials seized were many of the Club's records that were in the possession of Ms. Jordahl and Mr. Johnson," Randa continued. "The warrants indicate that they were executed at the request of GAB investigator Dean Nickel."

Johnson's wife, Valerie, posted two notes on her Facebook page shortly after the raid citing the constitutional amendment protecting against unreasonable searches and seizures. "You don't spend a lot of time thinking about this amendment until you realize it is being grossly violated," she wrote on Oct. 11 — eight days after the raid.

Randa also wrote that on the same day O'Keefe and others with Wisconsin Club for Growth received subpoenas to turn over the club's records from March 1, 2009, until the present. The subpoenas were subject to a secrecy order.

O'Keefe estimates the Wisconsin Club for Growth has lost $2 million in fundraising that would have been committed to issue advocacy, Randa wrote.

Randall Crocker, attorney for Schmitz, said in a statement that he "will carefully review the decision of Judge Randa and address with our client his responsibilities pursuant to his appointment and his options."

Donald Downs, a professor of political science and law at the University of Wisconsin-Madison, said he would need to read the ruling before giving full comments. But the news of the ruling stunned him.

"Wow," Downs said. "This goes beyond anything I expected."

Downs said the case had the potential to lead to important new legal interpretations on questions of free speech and criminal prosecution.

"If the Seventh Circuit reverses (Randa), it'll go to the Supreme Court, believe me. And they'll take it because they're hot to trot on these issues right now," Downs said.

Bill Glauber and Jason Stein of the Journal Sentinel staff contributed to this report.