“Lawfare,” a term combining “law” and “warfare,” is largely used in discussions of law as it relates to military affairs and foreign policy. A look at the term’s Wikipedia entry indicates this most common usage, and this is supported by a far more authoritative law review article by Professor Wouter Werner. This week, David French’s excellent article in National Review revealing the stories behind the sordid John Doe investigations in Wisconsin also notes the broadening of lawfare as something used domestically in America:
The John Doe investigations are a form of domestic lawfare, and our constitutional system is ill equipped to handle it. Federal courts rarely intervene in state judicial proceedings, state officials rarely lose their array of official immunities for the consequences of their misconduct, and violations of First Amendment freedoms rarely result in meaningful monetary damages for the victims.
This kind of lawfare is exactly what Pillar of Law Institute aims to stop.
Let me explain this new form of lawfare a bit more. Politics is a messy business, and campaigns for office—from your local school board to the presidency—often bring out the worst in people. Show me a candidate who will do everything to win and I’ll show you the one I’ll bet on for a victory. By this, I mean the candidate who engages the electorate enthusiastically and tirelessly, and raises money to do this successfully. This engagement will sometimes be described as “dirty” or any other number of pejoratives, usually (and conveniently) leveled between candidates and groups with different policy positions. What campaign finance reformers would have you believe is that more and more engagement is “corrupt” as it relates to money. Since all political speech—from walking door-to-door in a district to taking out advertisements—costs money, the reach of “corruption” really is all-encompassing. Nevertheless, the thinking goes, it is appropriate for government to create and enforce laws to combat such corruption. But these laws actually make politics dirtier than before, because now any number of campaign activities by candidates and politically engaged citizens break the law, and opposition will be quick to sue or complain to a government agency rather than keep disagreement solely in the political arena. But, while threatening citizens with civil fines or criminal penalties, opposition will certainly remain active in the political arena, using the lawsuit or complaint to label opposition “corrupt.” This, in short, is today’s domestic political lawfare, and it is too often more corrupt than the problem it pretends to solve.
Returning to French’s article, Wisconsin is the most chilling example of this lawfare, because it has roped in so many people, its legal basis is shocking even to laypersons and its partisan motives are obvious, but it is far from the only example. In Texas, a man named David Cary recently had his conviction for bribery overturned, reversing a prosecution instigated by those upset over the results of a judicial election (perhaps even the losing judge himself). The prosecution already destroyed the career of the judge who won the election and others involved in her campaign. A case now hoping to be heard by the United States Supreme Court from Washington State is the result of carefully targeted lawsuits against a gubernatorial candidate and some of his supporters, suits as blatantly partisan as the Wisconsin inquisition. A few years ago, an officer at the Florida Elections Commission estimated that 98% of the complaints the agency receives are “politically motivated” “to punish their political opponent” or to “harass that person or otherwise divert their attention from their campaign.” Lawfare is becoming an all-too-accepted tactic, for the moment largely used by the left and ardent supporters of campaign finance reform but soon enough a new normal in American politics.
Politicos and, I expect, anyone involved in regular campaign finance work are already familiar with “lawfare” as applied to American politics. I hear it used more and more. In fact, as I introduce Pillar of Law Institute to people here in the Beltway or beyond, some believe—or even express hope—that POLI will serve as a new combatant in domestic political lawfare. Let this post serve as unequivocal notice: no, it won’t.
Today’s domestic political lawfare is antithetical to everything POLI—and First Amendment—stands for. We’re here to fight it and hopefully put a stop to it, not join in it. Success will not make American politics clean in the eyes of some reformers, but it will be far cleaner when citizens are again free to run for office and otherwise engage without risk of fines or jail time.