Eric Holder’s Speech Police

Eric Holder’s Speech Police

Justice gears up to prosecute campaign ‘coordination.’

From the Wall Street Journal

You know the 2016 election is heating up when the Justice Department announces it’s gearing up to prosecute campaign-finance “coordination” between candidates and outside groups. If you thought the IRS targeting of conservative nonprofits was troubling, watch what Justice can do to criminalize political speech.

Justice said in a recent statement that it plans to “aggressively pursue coordination offenses at every appropriate opportunity.” That’s a warning for Republican candidates and the SuperPacs that support them. Note to major players: The federal government can subpoena your documents, email, computers and bank records in a political fishing expedition conducted by the FBI.

Under federal law, a campaign expenditure is illegally coordinated when it meets certain tests for content and conduct. The content of an ad must either advocate for a candidate or mention the candidate by name in the 60 days before a general election. The conduct amounts to illegal coordination if there is material involvement or substantial discussion between a SuperPac and a candidate regarding that election-related content.

A coordination investigation can be started on almost any pretext. All you need is an allegation that someone talked to someone they should not have. Once the investigation makes it over that low evidentiary hurdle, the feds can comb through every shred of personal and group communications to find illegal contact.

We’ve seen how this wrecking ball works in Wisconsin, where Governor Scott Walker ’s conservative allies had their records seized and homes raided based on mere claims of coordination. Justice is now essentially giving itself sway to probe every Republican presidential campaign based on an accusation from some left-wing activist.

Justice is also elbowing into an area handled by the Federal Election Commission, which is responsible for civil campaign finance violations. The Justice Department traditionally handles knowing and willful violations of the law, a smaller subset of campaign offenses.

The FEC was designed to ensure that neither political party could capture the agency, and out of concern that Justice wasn’t the right place for the job. Minnesota Democrat Hubert Humphrey said at the time that “[t]he temptation to politicize the Department of Justice, which currently has jurisdiction over such matters, is or has been apparently too great to resist. Therefore, an independent body is necessary to properly execute the election laws in an impartial and nonpartisan manner.”

The head of Justice’s Election Crimes Branch, Richard Pilger, is a proponent of criminal coordination investigations at the Justice Department. Two attendees tell us that at a Practicing Law Institute seminar in September 2014 Mr. Pilger said this explicitly.

Mr. Pilger was also a foot on the gas pedal during the IRS’s increased screening of conservative 501(c) groups. In 2010 he reached out to then IRS tax-exempt chief Lois Lerner about prosecuting nonprofits that engaged in political activity for making false statements on their tax returns. In an October 2010 email exchange, Ms. Lerner and Mr. Pilger discussed the transfer of data on 501(c) organizations. The Justice Department ended up with a database of 1.1 million documents, including protected taxpayer information.

Ms. Lerner knows all about campaign “coordination,” having led a multiyear FEC coordination investigation into the Christian Coalition in the 1990s. Ms. Lerner was pursuing a theory that the group had illegally coordinated its issue advocacy with candidates. That theory was rejected in federal court.

The Justice Department may now be trying to pick up where the IRS and Ms. Lerner left off. Justice spokesman Peter Carr emailed us a statement that the universe of potential criminal prosecution is broad: “The opportunity to commit the crime has increased dramatically with changes in the law that have caused a substantial increase in the amount of independent expenditures and the number of independent expenditure entities.”

That’s a new business opportunity for activists at the Campaign Legal Center and Democracy 21 who wrote to Justice last week celebrating the news. But coordination investigations touch on the core of First Amendment protected political speech. The prospect of a Justice Department asking who talked to whom and when during a political campaign should give even liberals the chills.

Meantime, GOP campaigns better lawyer up because Mr. Pilger’s speech police are gunning for you.