Photo by Michael Land, Flickr CC
So many intentional lies have been spread about Wisconsin’s John Doe investigation into suspected campaign law violations by Gov. Scott Walker and Republican legislators that many people may honestly believe it’s just some petty, partisan, political squabble between Democrats and Republicans.
It’s not.
If Republicans get away with preventing law enforcement from prosecuting corruption in political campaigns, it would be their crowning achievement in a long series of increasingly brazen actions ushering in unlimited government corruption.
That’s why it was so important that last week three district attorneys—John Chisholm of Milwaukee County, Ismael Ozanne of Dane County and Larry Nelson of Iowa County—began an appeal of the Wisconsin Supreme Court decision ending the John Doe investigation to the U.S. Supreme Court.
No one knows whether the Supreme Court will accept the appeal. But we do know some very important things about the Supreme Court’s regulation of political campaign contributions.
The most important is that every Supreme Court ruling on campaign finance for the last 40 years, including the notorious Citizens United decision in 2010 that wiped out many financial restrictions, has insisted that contributions to candidates must be kept totally separate from contributions to so-called independent political organizations.
We also know why the Supreme Court outlawed such coordination between candidates and those outside organizations. In plain language, the court said it would open the door to big contributors secretly bribing elected officials.
That’s because the Supreme Court ruled government could—and probably should—limit contributions to politicians and require candidates to identify their contributors so the public would know if campaign contributors were buying political favors from politicians.
The court set a different set of rules for some independent political organizations. Citing the First Amendment, the Supreme Court ruled citizens (and, since Citizens United, corporations and labor unions as well) could make unlimited contributions to some independent political organizations without being publicly identified.
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If independent political organizations were allowed to coordinate directly with candidates, then campaign finance rules intended to expose corruption would become worthless.
Outside organizations could simply become money-laundering operations to hide the identities of donors making unlimited financial contributions. Large donors could make enormous, anonymous contributions to bribe politicians.
Gutting a 40-Year-Old Law
Those requirements set by the U.S. Supreme Court are what the Republican majority on Wisconsin’s Supreme Court got exactly wrong.
The majority decision by Justice Michael Gableman joined by justices David Prosser, Annette Ziegler and Pat Roggensack praised right-wing Republican political groups seeking to stop prosecutors from investigating them for illegal coordination with candidates as “these brave individuals” and trashed special prosecutor Francis Schmitz, a less blindly partisan Republican, leading the John Doe investigation.
“It is utterly clear that the special prosecutor has employed theories of law that do not exist in order to investigate citizens who were wholly innocent of any wrongdoing,” Gableman wrote.
That is utterly wrong. The law against independent groups coordinating with candidates not only exists, but it has been the law of the land ever since Buckley vs. Valeo, the landmark 1976 Supreme Court campaign finance decision.
That’s when the court declared: “The absence of prearrangement and coordination of an expenditure with the candidate or his agent . . . alleviates the danger that expenditures will be given as a quid pro quo for improper commitments from the candidate.”
Despite loosening many other campaign finance regulations, the current court reiterated exactly the same point in Citizens United: “By definition, an independent expenditure is political speech presented to the electorate that is not coordinated with a candidate.”
So how could four Wisconsin justices get such an important legal principle totally wrong? Possibly on purpose. The court made another glaring legal error that also should be included in the Supreme Court appeal.
The major independent political groups apparently under investigation in the John Doe for illegally coordinating with Walker and Republican candidates were Wisconsin Club for Growth and Wisconsin Manufacturers & Commerce.
And get this. Those two groups and the entities they control spent $10 million to elect Gableman, Prosser, Ziegler and Roggensack to the Wisconsin court.
Schmitz specifically petitioned Gableman and Prosser to recuse themselves noting that clear conflict of interest, but both refused.
That, too, ignored a 2009 Supreme Court ruling finding “a probability of bias” when a West Virginia Supreme Court justice refused to recuse himself from a case before ruling in favor of a coal company executive who had contributed $3 million to the justice’s election.
Political corruption is now wide open in Wisconsin. The prosecutors’ investigation into illegal coordination with Republican candidates was shut down by a Republican court majority in clear defiance of previous Supreme Court decisions.
Then Republican legislators rewrote state election laws to allow candidates and supposedly independent political groups to coordinate spending and hide the identities of any contributors who want to bribe the governor or legislators.
The U.S. Supreme Court needs to restore clean government.
