Supreme Court Gives Scott Walker’s John Doe Cases the Silent Treatment
Oral arguments canceled for ‘briefs only’ debate
Instead, there’s been barely a peep, since the court canceled oral arguments a few weeks ago.
During oral arguments, the public was supposed to learn whether Walker’s campaign legally coordinated with supportive conservative groups such as the Wisconsin Club for Growth during the 2011 and 2012 recalls, or if, as prosecutors allege, Walker was at the center of a “criminal scheme” meant to subvert Wisconsin’s campaign finance laws by raising unlimited, unreported and corporate funds.
Before and during the recalls, Walker’s top campaign advisor, R.J. Johnson, was also working for Wisconsin Club for Growth, providing a vital link between the two entities. Prosecutors argue that Johnson and other Walker aides illegally coordinated fundraising and messaging during the recalls.
Walker admitted that he raised funds for Wisconsin Club for Growth but said that his actions were legal.
The “unnamed parties” filing suit claim that Wisconsin’s campaign finance laws allow coordination on “issue ads” that don’t specifically support or oppose a candidate. Besides, they argue, recent court decisions in Citizens United and other cases have chipped away at campaign finance laws, making Wisconsin’s restrictions obsolete.
The John Doe cases put the state Supreme Court in the position of deciding issues with sweeping national implications at a time when Walker is generating national and international headlines as he unofficially campaigns for the White House.
But that’s not all that’s at stake.
The unnamed parties also claim that prosecutors broke Wisconsin’s John Doe law when it set up the investigation, which spans five counties. The court will take up that matter as well.
In addition, the cases also raise issues of judicial ethics and recusal, since four of the Supreme Court justices hearing the matter—Michael Gableman, David Prosser, Patience Roggensack and Annette Ziegler—have benefitted from $10 million in campaign spending by Wisconsin Club for Growth and Wisconsin Manufacturers and Commerce, groups the prosecutors say were illegally coordinating with Walker’s campaign.
What Are They Afraid Of?
Despite the seriousness of the John Doe cases, the issues they present won’t be aired in open court to enlighten the public, a major letdown for political junkies and those interested in transparent government, judiciary and elections as well as campaign finance law in the post-Citizens United era.
A four-member majority of state Supreme Court justices decided just a few weeks ago to cancel oral arguments altogether, citing privacy concerns for those under investigation in the John Doe, who are still anonymous “unnamed petitioners” in their filings. Two of those “unnamed petitioners” are likely Wisconsin Club for Growth and its executive director, Eric O’Keefe, who fought the John Doe in federal court and are now appealing their case to the U.S. Supreme Court.
Three members of that majority—Gableman, Roggensack and Ziegler—were the beneficiaries of millions of dollars of campaign spending by two groups apparently caught up in the John Doe, Wisconsin Club for Growth and Wisconsin Manufacturers and Commerce.
Instead of opening the doors of the court to the public, the Supreme Court is receiving thousands of pages of legal briefs from the parties. According to the court’s order, the parties will submit briefs for the court under seal as well as redacted briefs for the public’s consumption, which the court will release. The parties will also be able to object to their opponents’ redactions.
The steady drip of legal papers isn’t quite the same as hearing testimony in open court, with justices asking follow-up questions and sifting through facts in a public manner in a hearing recorded for posterity.
The Supreme Court doesn’t hear oral arguments in every case it takes up, but the decision to have a briefs-only case in a high-profile, politically charged suit involving the governor is a controversial one. Courts have heard highly sensitive cases in the open, and, as Chief Justice Shirley Abrahamson noted in her dissent, that includes cases touching on grave national security issues. She also argued that the John Doe gag order doesn’t apply to a proceeding in front of the Supreme Court.
“Just because holding oral arguments in the instant cases without breaching confidentiality would present logistical challenges does not mean oral argument should be eliminated,” Abrahamson wrote.
Justice David Prosser, typically a member of the court’s conservative majority and a beneficiary of right-wing spending, also dissented from the March 27 decision to shut down oral arguments, calling it a “mistake.”
“As members of this court, our job is to do the right thing, as each of us understands the right thing, regardless of the inconvenience, or the controversy, or the consequences,” Prosser wrote.
Ed Fallone, a Marquette Law School professor who ran against Justice Roggensack in 2013, said that the court can determine its own procedures, so the justices have the right to cancel oral arguments. That said, Fallone wondered if their decision was a sound one.
“I would put this in the category of unusual, but not good from the perspective of the court being a transparent government institution,” Fallone said. “And certainly not good from the perspective of the court allaying the public’s concerns over the influence of outside monied interests on the court.”
Former Democratic Attorney General Peg Lautenschlager also took issue with the court’s decision to cancel oral arguments.
“While there are instances when cases are decided without oral argument this does not seem to be a case which falls into that category,” Lautenschlager told the Shepherd. “The issues at bar are complex and many and it would seem that an enlarged time frame for oral argument would be justified in this matter. Precluding oral argument in a complex, multifaceted case like this seems only to create the question, what are they afraid of?”
National Attention and Implications
As of this writing, just a few documents have been released by the court and some bits of information have been posted on the state Supreme Court’s website.
Last week, the court released a brief from John Doe Judge Gregory Peterson and the chief judges who signed off on the appointment of a John Doe judge to oversee five separate investigations into the alleged coordination. They argue that they followed the law when appointing Reserve Judge Barbara Kluka, then, after she recused herself, Reserve Judge Peterson, as well as special prosecutor Francis Schmitz, a former George W. Bush-era federal prosecutor.
Also released were documents setting up the John Doe investigation, the Appeals Court decision supporting the prosecutors’ case, as well as the unnamed parties’ objections to some insufficient redactions.
The state Supreme Court’s website also includes information about parties, including the Government Accountability Board (GAB), that want to submit friend of the court briefs in the cases.
In addition to the GAB, the fight over campaign finance regulations and judicial recusal rules has attracted right-wing groups from Wisconsin, including Wisconsin Right to Life, the anti-gay Wisconsin Family Action and the tea party group that helped to fuel Walker’s political career, Citizens for Responsible Government Advocates.
National right-wing groups want to petition the court as well, including the James Madison Center for Free Speech, the right-wing think tank Wyoming Liberty Group, the Judeo-Christian tradition-supporting Ethics and Public Policy Center, conservative former members of the Federal Election Commission and the anti-campaign finance law group Center for Competitive Politics. Professors for legal ethics at the Brennan Center for Justice at New York University also want to weigh in on judicial recusal rules.
The Campaign Legal Center, Democracy 21, Common Cause in Wisconsin and League of Women Voters of Wisconsin also want to petition the court to uphold the state’s campaign finance regulations.
Jay Heck, executive director of Common Cause in Wisconsin, told the Shepherd that even though the state and federal courts have weakened campaign finance regulations, no court has ruled that the kind of coordination alleged in the John Doe is legal. Campaigns and allegedly independent groups can’t coordinate, even if they’re joining efforts on issue ads and not overt campaign ads, Heck said.
“Whatever they did in 2012 is illegal under Wisconsin’s campaign finance law,” Heck said.