A Morning at the Ministry of Speech

Early in the morning of Dec. 11, a few days before his 44th birthday, a political activist named Eric O'Keefe put on business trousers and a sports jacket, but decided not to wear a necktie. This was his small gesture of protest against the proceedings he was about to attend. He and his attorney breakfasted together, went over his testimony, and then drove to a state building in downtown Madison, Wis. In an undecorated and viewless conference room, O'Keefe swore an oath to tell the truth, and then submitted himself to 80 minutes of questioning by an assistant state attorney general who was seeking to determine whether O'Keefe was a lawbreaker.

Jones vs. Clinton notwithstanding, a civil deposition is generally a tedious affair. Eric O'Keefe's deposition in Madison was of the usual undramatic sort. Precisely because the session was numbingly legalistic, however, it merits attention; for in that room, last December, you saw one of the several possible futures of campaign law in America.

The prosecutor begins her inquiry by establishing that O'Keefe is the president of an organization called Americans for Limited Terms (ALT). One way the group agitates for term limits is by running radio and television ads in close races between one candidate who favors limits and another who opposes them. In 1996, ALT ran a $24,000 radio, phone, and mail campaign in the district of a Democratic state assemblyman named David Travis. The radio ads in this campaign are at issue as the prosecutor probes, in fine detail, how the group conducted its campaign.

"Who created the ad?'' she asks. "When was it designed?'' . . . "How do you decide what to say and what not to say, given that you have a 30-second soundbite?'' . . . "What is the reason you particularly chose Travis' campaign?'' The state is also interested in the group's strategies for raising and spending money. "How many donors are there?'' ("Hundreds.'') . . . "How does the organization decide how much money to spend where?'' ("Well, that's complex . . .''). ``How do you decide which [races] are prime and which are marginal?''

In 1996, Travis was enraged to find himself targeted by ALT's ads. He believed the group to be a shadowy conduit for Republican money, so he sued ALT and also filed a complaint against it for running campaign ads without filing the proper registration and disclosure papers with the state elections board. The elections board, in turn, also sued ALT, which led to O'Keefe's deposition in December.

Look at this situation one way, and you see a politician trying to ensure that the spirit of the law is followed, and a state bureaucracy doing its job. "We brought enforcement actions as the elections board requested us to do,'' says Jim Haney, a spokesman for Wisconsin attorney general James E. Doyle.

Change your angle of vision, however, and you may see something more like what Eric O'Keefe sees: "state-funded opposition research.'' Here, on the face of things, is a powerful incumbent politician, outraged by criticism, using an agency of government to punish his critics in court. More: Here is a state prosecutor, her paycheck signed by (among others) Travis, demanding to know all about ALT's political methods, exhaustively and minutely.

What, then, is happening in this deposition room? A conscientious exercise in law enforcement, or a chilling political inquisition? Never mind. Skip ahead to the really important question, which is: How, even in principle, could you tell the difference? Objectively speaking, you can't. This becomes clearer as the deposition continues.

Q: In this [radio ad], do you include a phone number?

A: I don't see one.

Q: Do you recall what the rationale was behind not providing a phone number?

A: No, I don't.

Q: You really wanted people to call Dave Travis and talk about term limits, is that your testimony?

A: We wanted Dave Travis to come around on term limits. That would be our preferred outcome.

Q: But you didn't provide a number for people to call him?