By Brendan Fischer on February 19, 2014

View of the Herter Mural with the Wisconsin Supreme Court Bench in the foreground.An order from the Wisconsin Supreme Court halting the John Doe campaign finance investigation would directly affect the same organizations that helped put four of the justices on the bench, calling into question whether any of those justices can be impartial.

On February 7, two unnamed petitioners filed a motion for an original action in the Wisconsin Supreme Court, asking the justices to halt the John Doe criminal investigation into possible campaign finance violations during the state's 2011 and 2012 recall election. The names of the petitioners and the court filings are not public, but if the Court accepts the motion for an original action -- meaning the Court takes the case directly, rather than having it advance through the lower courts -- the court's four-justice conservative majority could have the power to halt a criminal investigation into groups that have played a key role in getting those same justices elected.

The two highest-profile groups named in the John Doe investigation, Wisconsin Club for Growth and Citizens for a Strong America, have been among the top spenders on Wisconsin Supreme Court races in recent years, in many cases spending more than the candidates themselves. Wisconsin Club for Growth director Eric O'Keefe has defied a secrecy order to speak publicly with the Wall Street Journal editorial board about being subpoenaed in the John Doe, and has asked a federal court to halt the probe. Wisconsin Club for Growth and Citizens for a Strong America are reportedly under investigation for coordinating with the Walker campaign during the recall elections.

According to data from the Wisconsin Democracy Campaign, Wisconsin Club for Growth spent at least $1,615,860 on the last four Supreme Court races. Citizens for a Strong America, which is entirely funded by Wisconsin Club for Growth, spent $836,000 supporting Justice David Prosser's reelection in 2011, which he won by just 7,000 votes; in that race, Citizens for a Strong America alone spent more than Prosser's own campaign.

Wisconsin Manufacturers and Commerce (WMC) also received a subpoena in the investigation, and has spent at least $5.43 million electing the court's conservative majority. It is not known whether WMC is a target of the probe. In three out of the four Supreme Court races since 2007 where WMC has been active, it has spent more than the candidate it supported.

Although the Wisconsin Supreme Court has grown notorious for its lax recusal practices, the level of spending by the groups in this case -- and their direct stake in the outcome -- could demand recusal under the U.S. Constitution, following the 2009 U.S. Supreme Court decision in Caperton v. Massey. In that case, the U.S. Supreme Court held that a West Virginia Supreme Court justice should have recused himself from a decision involving a major campaign contributor.

"This could be a landmark case for applying the Caperton standards," Matthew Menendez, counsel at the Brennan Center for Justice, told the Center for Media and Democracy.

U.S. Constitution Could Require that Wisconsin Judges Recuse

In the 2009 Caperton case, the U.S. Supreme Court held that a West Virginia Supreme Court justice should have recused himself from a case involving Massey Coal, after the Justice received $3 million in campaign support from the company's President & CEO, Don Blankenship. Blankenship had given $2.5 million to a PAC supporting the justice, and spent another $500,000 on independent expenditures.

"In an election decided by fewer than 50,000 votes, Blankenship's campaign contributions -- compared to the total amount contributed to the campaign, as well as the total amount spent in the election -- had a significant and disproportionate influence on the outcome," the Court wrote, also noting that the donations were given shortly in advance of the case appearing before the court. "And the risk that Blankenship's influence engendered actual bias is sufficiently substantial that it 'must be forbidden if the guarantee of due process is to be adequately implemented.'"

The facts in that case echo what is facing the Wisconsin Supreme Court.

In 2011, Justice Prosser won reelection by just 7,000 votes. Wisconsin Club for Growth and its offshoot Citizens for a Strong America -- both of which are under investigation in the John Doe probe -- combined spent almost twice as much as the Prosser campaign, and were among Prosser's top supporters. Wisconsin Club for Growth spent $415,860 supporting Prosser's reelection. Citizens for a Strong America, which was entirely funded by Wisconsin Club for Growth that year, spent $836,000 backing Prosser and attacking his opponent. Prosser himself spent only $700,000.

(Notably, an email later obtained through an open records request showed a GOP donor boasting to Governor Walker's office about his efforts to "get very creative" to support the Prosser campaign through independent electoral groups. Some have read the email as suggesting coordination between Prosser's campaign and independent groups -- the same issue reportedly under investigation in the John Doe.)

Justice Gableman won his 2008 election by around 20,000 votes. Wisconsin Club for Growth spent over $500,000 to elect Gableman, eclipsing the $411,000 spent by the Gableman campaign. Coalition for America's Families, which received funding from Wisconsin Club for Growth and shared a board member, spent $480,000 supporting Gableman that year.

In last year's Supreme Court race, Wisconsin Club for Growth spent $300,000 on ads supporting the reelection of Justice Patience Roggensack. And in 2007, Wisconsin Club for Growth dropped $400,000 to help put Justice Annette Ziegler on the Court.

When WMC's election spending is tabulated the numbers grow even more astounding. WMC, the powerful state chapter of the U.S. Chamber of Commerce, spent around $1 million helping reelect Prosser. It chipped-in $470,000 supporting Roggensack. It spent $1.76 million getting Gableman elected. And it spent an eye-popping $2.2 million to put Ziegler on the court.

In every single one of these elections, the spending by WCFG, its surrogates, and WMC amounted to almost all of the independent support for the candidate. Together, the three groups have spent $7.88 million since 2007 helping elect the court's four-justice conservative majority.

"Recusal standards are the bulwark to protect the public's faith in the judiciary"

"Caperton sets a constitutional floor for [when recusal is required to avoid] the appearance of bias from campaign spending," Menendez said, noting hat the U.S. Supreme Court in that case encouraged states to create judicial codes for recusal.

Many states adopted stronger rules. Wisconsin went the other direction.

In 2010, the Wisconsin Supreme Court's four-justice conservative majority adopted new rules stating that the fact of a campaign contribution alone would not require recusal. Notably, the rules were written by WMC -- which has reportedly received a subpoena in the John Doe case -- and the Wisconsin Realtors Association, which gave over $1 million to Wisconsin Club for Growth in its 2010-2011 fiscal year.

"Based on the wording of Wisconsin's rules, they are unlikely to provide basis for recusal" in this case, Menendez told CMD. However, "that doesn't foreclose a Caperton challenge, where a party exercised such a disproportionate influence over elections that it rises to the level of a due process violation."

The question of due process -- in this situation, the right to an unbiased judge and a fair trial -- not only matters to the litigants in a particular case, but also the public perception of the judiciary, Menendez stressed.

"The judiciary relies on public confidence in its integrity to function," Menendez said. "Recusal standards are the bulwark to protect the public's faith in the judiciary."

Brendan Fischer

Brendan Fischer is CMD's General Counsel. He graduated with honors from the University of Wisconsin Law School.