Scott Walker’s presidential campaign has just begun, but on Thursday the Wisconsin governor received a boost from the Supreme Court in his home state.
A ruling dismissed a three-year probe into alleged campaign finance violations by Governor Walker’s gubernatorial campaign and outside conservative groups. The so-called John Doe probe had launched in 2012, investigating allegations that the coordination between the organizations violated the state’s campaign finance laws.
The 4-to-2 decision came from an explicitly partisan high court that has itself been the focus of controversy over funding of the judges’ election campaigns.
The probe – which allows prosecutors to force people to give testimony and produce documents, and bars them from speaking about the investigation with anyone but their attorneys – focused on whether Walker’s campaign illegally coordinated with the Wisconsin Club for Growth and other conservative groups in the run-up to the 2012 recall election. That election was spurred by Democrats’ anger over a law Walker pushed for that effectively ended collective bargaining rights for most public workers.
Walker and other Republicans described the probe as a partisan witch hunt, as the first few months of the probe yielded 29 subpoenas seeking millions of documents. The lead prosecutor was a Democrat, Milwaukee County District Attorney John Chisholm, but he was assisted by four district attorneys from both parties and the Government Accountability Board, which oversees the state’s campaign finance laws.
The groups and Walker contended they were doing nothing wrong – despite investigators finding evidence that they worked together on a strategy and in some cases had employees working for multiple groups at the same time – because the campaign groups run “issue ads” that don’t explicitly tell people how to vote. “Express advocacy” ads, on the other hand, use phrases like “vote for” or “vote against.”
The state Supreme Court ruled in favor of this argument. Writing for the majority, Justice Michael Gableman said that a key section of Wisconsin’s campaign finance law is “unconstitutionally overbroad and vague” and that the activities under investigation in the probe were not illegal.
“Let one point be clear: our conclusion today ends this unconstitutional John Doe investigation,” Justice Gableman wrote. Litigation challenging the probe, he added, gave the court “an opportunity to re-endorse its commitment to upholding the fundamental right of each and every citizen to engage in lawful political activity and to do so free from the fear of tyrannical retribution of arbitrary or capricious governmental prosecution."
In her dissent, Justice Shirley Abrahamson wrote that the majority opinion “adopts an unprecedented and faulty interpretation of Wisconsin’s campaign finance law and of the First Amendment.”
“The majority opinion’s theme is ‘Anything Goes,’ ” she added. The ruling "delivers a significant blow to Wisconsin’s campaign finance law and to its paramount objectives of ‘stimulating vigorous campaigns on a fair and equal basis’ and providing for ‘a better informed electorate.’ ”
Daniel Weiner, a senior counsel for the Brennan Center for Justice, wrote in a statement that the decision “effectively eviscerates [campaign] contribution limits in Wisconsin.”
“By limiting the reach of Wisconsin coordination rules to ‘express advocacy,’ for or against candidates, the court has made campaign finance law extraordinarily easy to evade,” he added. “It is a misreading of the law and threatens fair and transparent elections.”
The Brennan Center filed an amicus brief earlier this year in support of a motion by the special prosecutor leading the probe to have one or more of the justices drop out of the case.
Only one of the justices ended up recusing herself: Ann Walsh Bradley – the court’s other liberal justice – who recused herself because her son works for a law firm involved in the case. The court’s four conservative justices ended up forming the majority, and Justice Abrahamson formed the minority with swing justice Patrick Crooks.
Outside observers argue that Justice Bradley shouldn’t have been the only justice to step away from the case. According to the Wisconsin Democracy Campaign, a group that tracks political spending, the four justices who voted to end the probe received campaign donations from some of the groups under investigation in the probe.
According to the Wisconsin Democracy Campaign, groups including Wisconsin Club for Growth, Wisconsin Manufacturers & Commerce, and Citizens for a Strong America contributed an estimated $2.6 million to Justice Annette Ziegler’s 2007 election campaign, $2.2 million to Gableman’s 2008 campaign, $2.6 million to Justice David Prosser’s 2011 campaign, and $850,000 to Justice Patience Roggensack’s 2013 campaign.
Abrahamson has also benefited from outside groups in her campaigns, receiving donations from unions and liberal groups, according to the Milwaukee Journal Sentinel, although those groups weren’t involved in the John Doe probe or the court cases against it.
A 2010 ruling by the Wisconsin Supreme Court changed the state’s recusal rules to exclude “campaign contributions” as a basis for judicial recusal, according to the Brennan Center.
Matt Menendez, a counsel at the Brennan Center, said in a statement that the ruling “raises grave concerns about the fairness and impartiality of the court in this case.”
“Based on the publicly-available information, it is extraordinary that the Wisconsin Supreme Court refused to explain how several of the justices could, ethically and constitutionally, even rule on this case.”