It was almost inevitable that the Wisconsin Supreme Court would rule in favor of Gov. Scott Walker and his campaign allies and shut down the John Doe investigation into their potential crimes.
After all, the conservative majority went to great lengths to keep a tight lid on the proceedings, even going so far as to cancel oral arguments and deprive Wisconsinites of the chance to hear the parties present their cases in open court.
But last week’s 4-2 ruling shutting down the John Doe and rewriting state campaign finance regulations seemed predestined by the makeup of the court and the parties in the case.
The four members of the Supreme Court majority benefited by receiving over $8 million in campaign spending by two major parties in the case—Wisconsin Manufacturers & Commerce (WMC) and the Wisconsin Club for Growth—who were being investigated for potentially illegal coordination with Walker’s campaign during the 2011 and 2012 recalls.
And that link between the four-member majority and the heavy-spending groups could be key to the John Doe investigation’s revival.
A Very Expensive Majority
Four justices—Michael Gableman, David Prosser, Patience Roggensack and Annette Ziegler—voted in favor of shutting down the John Doe investigation and rewriting campaign finance rules so that they conform to how Walker and the allied groups operated during the recalls. They even went one step further and ordered the return or destruction of evidence gathered during the investigation.
These four justices benefited from $8 million spent by the WMC and the Wisconsin Club for Growth during their campaigns. That amount jumps to $10 million when the $2 million spent by the groups’ surrogates is included.
According to the 2009 U.S. Supreme Court decision in Caperton v. Massey, judges could be required to remove themselves from a case that involves a significant campaign contributor. If the judge remains on the case, he or she could be depriving the other party of getting a fair trial, which is unconstitutional. Francis Schmitz, the independent prosecutor in the John Doe investigation, asked both Gableman and Prosser to recuse themselves from the case but, obviously, they both stayed on it, with Gableman writing the majority opinion.
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The $10 million majority could stay on the case because Wisconsin’s judicial recusal rules are so lax that judges and justices can decide cases involving major campaign donors, which flies in the face of the standard the high court set in the Caperton decision. Wisconsin’s recusal rules are so permissive because they were written by big campaign donors—WMC and the Wisconsin Realtors Association—and adopted by the four-member conservative majority verbatim in 2010. In essence, a Supreme Court justice or judge can decide for himself or herself if they feel they have too much of a conflict of interest to stay on the case. Corruption built upon previous corruption.
Government watchdog Mike McCabe of Blue Jean Nation said that the court majority had such flagrant conflicts of interest in this case it should not have ruled at all and definitely not shut down the investigation.
“That leaves the prosecutors with a very good case before the U.S. Supreme Court that what the state Supreme Court did was unconstitutional under the U.S. Constitution,” McCabe said.
That said, if Schmitz does decide to appeal the decision, he will have to turn to the Department of Justice for legal representation. Republican Attorney General Brad Schimel could take on the case or, if he refuses to appeal the decision, then the governor can appoint an attorney to appeal the case.
Unprecedented Campaign Finance Ruling
McCabe said that the prosecutors have a good chance of appealing the decision based on the merits of the case. For decades, Wisconsin and the rest of the country has recognized campaign finance rules that require disclosure of spending done by independent groups in coordination with candidates.
In the John Doe investigation, prosecutors were looking at whether the Walker campaign coordinated with these allegedly independent special-interest groups—Walker eventually admitted that he did fundraising for Wisconsin Club for Growth—and whether that coordination was legal. Special prosecutor Schmitz argued that not only did the coordination exist on “issue ads” but also on campaign ads that explicitly advocated for or against a candidate.
The defendants challenged the case, saying that their free speech rights allow them to coordinate on issue ads without disclosing that relationship or donors. The state Supreme Court took up the matter as an original action, meaning that no lower court heard the arguments in the case and developed a factual record, and the court canceled oral arguments scheduled for April.
Again, not surprisingly, the Wisconsin Supreme Court decided in Walker and his allies’ favor and declared that candidates and outside groups can coordinate on issue ads and not disclose their relationship.
No other court in the country has come to the same conclusion, although federal Judge Rudolph Randa made a similar decision last spring and shut down the case and ordered the return or destruction of evidence. His decision was promptly overturned on appeal by the U.S. Seventh Circuit Court of Appeals in Chicago.
Jay Heck, executive director of Common Cause in Wisconsin, said the decision now allows donors to give freely—and anonymously—to dark money groups while knowing that their funds will benefit a specific candidate, as long as the ads in question don’t use the magic words of “vote for” or “vote against” a candidate. He said the decision “renders contribution limits meaningless.”
He said the campaign coordination aspect of the decision could be challenged in the U.S. Supreme Court on constitutional grounds and said the Wisconsin Supreme Court made new law in the case instead of interpreting it.
“While this decision was not unexpected it’s still highly shocking that the state Supreme Court would have gone further than any other court in the country, and certainly any other federal court, in unraveling and destroying campaign finance limitations and law in Wisconsin,” Heck said.
