Submitted by Brendan Fischer on
The Wisconsin Supreme Court has agreed to review the long-running investigation into possible criminal campaign finance violations by Wisconsin Governor Scott Walker's campaign and "dark money" electoral nonprofit groups, setting the stage for significant questions about conflicts-of-interest on the court and the future of clean elections in Wisconsin.
The Court's decision to take the case raises serious questions of judicial ethics, as the majority of justices were elected with millions of dollars in backing from precisely the same groups that face criminal liability in the probe, as the Center for Media and Democracy first described. The two groups at the center of the investigation, Wisconsin Club for Growth (WiCFG) and Wisconsin Manufacturers & Commerce (WMC), have together spent over $10 million since 2007 helping elect the court's four-justice conservative majority, in most cases spending more than the candidates themselves.
This means that the court's majority has the power to decide whether their biggest supporters will face criminal liability. The Wisconsin Supreme Court has grown notorious for its lax recusal practices, but many legal experts think that these circumstances demand that at least some of the justices step aside.
Outside of the realm of judicial ethics, the overarching issue in the case is the scope of Wisconsin's campaign finance law, and whether candidates like Walker are allowed to coordinate with "dark money" groups that don't disclose their funding and spending. Allowing such coordination would have the effect of undermining the disclosure laws and contribution limits that apply to candidates, opening the door to nearly unlimited secret money in Wisconsin elections.
"Criminal Scheme" Investigation Tied Up In Court
The investigation to be reviewed by the Court has been led by a special prosecutor with Republican credentials and a bipartisan group of Wisconsin county District Attorneys. These career prosecutors allege that Walker and his campaign were at the center of a "criminal scheme" to circumvent the transparency requirements of Wisconsin campaign finance law during the recall elections by coordinating fundraising and spending with dark money groups like Wisconsin Club for Growth (WiCFG).
Yet, the investigation has been tied up in court for over a year thanks to a well-funded legal counter-attack from WiCFG, the Walker campaign, and Wisconsin Manufacturers and Commerce. Those groups claimed that the omission of terms like "vote for" or "vote against" in WiCFG's ads put them beyond the reach of long-standing Wisconsin law, including laws governing coordination. This argument runs directly counter to a precedent-setting Wisconsin court of appeals decision from 1999, yet the subjects of the investigation have nonetheless managed to use a series of lawsuits to gum-up the investigation for thirteen months.
As soon as the first subpoenas were issued in November 2013, they were challenged in court by WiCFG, the Walker campaign, and WMC. The judge overseeing the "John Doe" investigation halted the probe in January of 2014, and asked an appellate court to resolve the competing interpretations of Wisconsin campaign finance law; the Walker campaign then asked the state Supreme Court to take the case directly, a request it did not act on until now.
Separately, unnamed parties challenged the investigation on procedural grounds in November 2013, questioning the appointment of the John Doe judges and whether those judges could oversee a five-county investigation. An appellate court rejected the challenge, and the parties appealed to the Wisconsin Supreme Court, which on December 16 consolidated the appeal with the Walker campaign's petition. The unnamed parties bringing the suit are RJ Johnson -- a top advisor to both the Walker campaign and Wisconsin Club for Growth -- and his business partner Deb Jordahl, the Milwaukee Journal Sentinel reports.
Johnson and Jordahl were also the plaintiffs in a third challenge to the investigation filed directly with the Wisconsin Supreme Court in February. The record is sealed in that case, but on December 16 the Court also consolidated it with the other two lawsuits.
With the three cases combined into a single action, the Wisconsin Supreme Court will consider a diverse array of issues, ranging from the procedures used to appoint a John Doe judge and a special prosecutor, to the scope of their authority, to whether Wisconsin campaign finance laws apply to ads that don't explicitly tell viewers to "vote for" or "vote against" a candidate -- and if the law does cover so-called "issue ads," whether such regulation violates the U.S. Constitution's First Amendment and its corollary in the state constitution. The Court will also consider the applicability of the coordination rules to recall elections, when the campaign contribution limits that normally apply are lifted, but disclosure requirements are not.
A federal lawsuit filed by WiCFG in February was shut down by the 7th Circuit Court of Appeals in September, with the appellate court unanimously rejecting a decision from controversial Judge Rudolph Randa that claimed coordinated issue advocacy is protected by the First Amendment: “Until [Judge Randa's] opinion in this case, neither a state nor a federal court had held that Wisconsin’s (or any other state’s) regulation of coordinated fundraising and issue advocacy violates the First Amendment,” wrote conservative 7th Circuit Judge Frank Easterbrook, declaring that the matter is best resolved in state court.
Secret and Convoluted Supreme Court Challenge
The potential impact of the case before the Wisconsin Supreme Court cannot be understated.
The Court's decision will likely set the bounds for how money can be raised and spent in state elections, and potentially open the door to unprecedented levels of secret money and closed-door, backroom deals. The court will also determine whether some of the biggest players in Wisconsin politics could face criminal liability for their conduct during the 2011 and 2012 recall elections -- including Governor Walker, who was reelected in November and is considered a top presidential contender for 2016.
Yet, at least initially, documents in the case will be filed under seal, meaning the press and public won't be able to review the legal and factual arguments being made before the court.
Plus, the odd manner by which the cases have arrived before the court means that the case would be difficult to follow, even if all documents were made public.
The three different cases each involved different sets of individuals and groups, each of whom likely have different interests in each of the various and complex issues raised, and whom will raise different and competing arguments throughout potentially dozens of briefs and reply briefs. "The array of issues that may be presented in the massive briefs filed is staggering," noted Chief Justice Abrahamson.
Although the Court unanimously agreed that they should review these cases, Chief Justice Abrahamson and Justice David Prosser -- from the liberal and conservative wings of the court, respectively -- wrote separately raising concerns that the procedural issues and questions of campaign finance law should be resolved separately.
“These matters are important to the people of Wisconsin,” Justice Prosser wrote. “They require the court’s best effort and they require the best effort of all counsel. The present order is so complex that it makes ‘best effort’ by anyone nearly impossible.”
Another complicating issue is that the Court doesn't have a complete factual record with which to assess the investigation. Generally, trial courts will establish a factual record -- such as the degree of communication and negotiation between the Walker campaign and WiCFG -- and appellate courts will review the lower court's application of the law to the facts. Here, "this court is being asked to decide these very complex issues with few, if any, settled facts and with the investigatory inquiry not having proceeded beyond a preliminary stage," Chief Justice Abrahamson noted.
"How can this court resolve these legal issues without knowing what types and levels of "coordination" occurred? Without facts relating to what the unnamed participants and any campaign committees did, the court will be left to decide important and complex legal issues in a vacuum," Abrahamson wrote. "The court cannot fill in the record with its own factual assumptions and hypotheticals."
Yet the most immediate question is whether the Wisconsin Supreme Court should be deciding the case at all.
In every single one of the most recent elections for the court's four Republican justices -- Justices David Prosser, Michael Gableman, Annette Ziegler, and Patience Roggensack -- spending by WiCFG, its surrogates, and Wisconsin Manufacturers and Commerce (WMC) amounted to almost all of the independent support for the candidate. Together, the two groups and their surrogates have spent over $10 million since 2007 helping elect the court's four-justice conservative majority, in most cases spending more than the candidates themselves. Some of the elections were decided by just a handful of votes.
A justice who was not the beneficiary of WiCFG or WMC spending, Ann Walsh Bradley, has already recused herself, on grounds that her son practices with one of the attorneys in the case. If at least three other justices step aside, the Court would lack the four-justice quorum needed to hear the case; unlike other states, Wisconsin does not have a mechanism for substituting retired jurists or court of appeals judges for justices that recuse.
The decision to recuse rests solely with the justices themselves, and in 2010 the Court adopted rules drafted by the business lobby WMC declaring that the fact of a campaign contribution alone won't require recusal. Yet, 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. A majority of the U.S. Supreme Court declared that where a donor "had a significant and disproportionate influence on the outcome" of a judge's election, and where an election was decided by a small number of votes, the risk of "actual bias is sufficiently substantial that it 'must be forbidden if the guarantee of due process is to be adequately implemented.'"
In Wisconsin, WiCFG, WMC, and their offshoots spent $3,685,000 supporting Prosser in his 2011 race, five times as much as the Prosser campaign, in an election decided by just 7,000 votes. WMC spent five-and-a-half times as much supporting Justice Michael Gableman as Gableman's own campaign in 2008, in a race he won by 20,000 votes, and WiCFG also surpassed Gableman's campaign spending. WMC and WiCFG spent twice as much as Justice Annette Ziegler's campaign in her 2007 race, and WMC and WiCFG together outspent Justice Patience Roggensack in her reelection campaign last year.
"It would strongly serve the public's confidence in courts for the justices to step aside," said Matthew Menendez, counsel at the Brennan Center for Justice, "in a case directly implicating the same groups that spent massive amounts of money supporting their election."