Why John Doe prosecutor should appeal to the U.S. Supreme Court

Matt Rothschild, Wisconsin Democracy Campaign

Special prosecutor Francis Schmitz has an obligation to appeal the decision by the Wisconsin State Supreme Court to dismiss the John Doe investigation. That decision legalized coordination between candidates and outside groups so long as those groups don’t say “Vote For” or “Vote Against” a certain candidate.

Schmitz was investigating alleged coordination between Scott Walker and several outside groups during the recall elections in 2011 and 2012, but the Wisconsin Supreme Court ordered him to close that investigation.

Schmitz has two solid grounds for appealing that order to the U.S. Supreme Court.

The first is that the conservative justices who ruled against him, 4-2, were biased and should have recused themselves.

The second is that those justices misread the U.S. Supreme Court precedents on campaign finance law and the First Amendment.

On the first ground, the four conservative justices — Justice Patience Roggensack, Justice Annette Ziegler, Justice Michael Gableman, and Justice David Prosser — had an obvious conflict of interest. Three main groups that the special prosecutor was investigating – Wisconsin Manufacturers and Commerce, Wisconsin Club for Growth, and Citizens for a Strong America — spent a combined total of more than $8 million on expenditures to help elect those four justices.

Here is the breakdown:

Wisconsin Manufacturers & Commerce spent about $5.6 million on these four conservative justices:

  • $500,000 in support of Roggensack
  • $1,100,000 in support of Prosser
  • $1,760,000 in support of Gableman
  • $2,200,000 in support of Ziegler

Wisconsin Club for Growth spent about $1.75 million on the four conservative justices:

  • $350,000 in support of Roggensack
  • $400,000 in support of Ziegler
  • $500,000 in support of Gableman
  • $500,000 in support of Prosser

Citizens for a Strong America spent about $1 million in support of Prosser in his tightly contested reelection race against JoAnne Kloppenburg in 2011.

In the landmark Caperton v. Massey Coal case in 2009, the U.S. Supreme Court ruled that a judge needs to recuse himself or herself when a party to a case has given so much campaign support to that judge that there is a “serious risk of actual bias.” As the Brennan Center for Justice has noted, the U.S. Supreme Court cited several factors that demonstrate such a serious risk: the “relative size” of the financial support in comparison to the total amount contributed to the campaign; the “apparent effect” of this financial support on “the outcome of the election”; and the timing of the financial support relative to the election day and the likelihood that a case involving the donor would be soon before the court.

The relative size of the expenditures on behalf of all four justices and the apparent effect those expenditures had on the outcome of their elections provide a solid basis for ruling that all four justices should have recused themselves.

As regards Justice Gableman, the $1,760,000 that Wisconsin Manufacturers and Commerce spent on his behalf proved decisive in an election that he won by only 20,000 votes. He has reliably ruled in favor of Wisconsin Manufacturers and Commerce since getting on the state’s highest court.

As regards Justice Prosser, the $2,600,000 that all three groups combined spent on his behalf proved decisive in the 2011 election that he won by only 7,000 votes. His victory came at a time when the recall process was just getting under way (and it was the activities of these three groups during the recalls that were at issue in the John Doe investigation).

Special prosecutor Schmitz had filed a motion seeking the recusal of at least one of the justices. That motion was not granted. And therefore this is one clear path for an appeal to the U.S. Supreme Court.

The second grounds for appeal is equally strong. As the Brennan Center has noted, the Wisconsin State Supreme Court’s ruling is “at odds with nearly forty years of Supreme Court precedent.”

The Wisconsin State Supreme Court ruled that it was protecting “political speech, a vital First Amendment right,” when it said that it was OK for outside groups to coordinate with a candidate so long as those outside groups aren’t engaging in express advocacy.

But in the famous 1976 U.S. Supreme Court case, Buckley v. Valeo, the court ruled that expenditures by outside groups that are coordinated with candidates amount to campaign contributions. “The ultimate effect is the same as if the person had contributed the dollar amount to the candidate and the candidate had then used the contribution,” the court ruled. Such expenditures, it said, should be “treated as contributions rather than expenditures.”

In fact, it is only the lack of coordination that reduces the risk of corruption, the Court argued in Buckley. “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 candidates.”

By contrast, the Wisconsin State Supreme Court, by legalizing coordination, is inviting precisely the kind of “quid pro quo” that Buckley was aiming to prevent. Ironically, the Wisconsin statute it invalidated was treating coordinated expenditures as contributions, just as the U.S. Supreme Court had instructed in Buckley.

In its 2003 ruling in McConnell v. FEC, the U.S. Supreme Court reaffirmed the illegality of coordination, stating that “outside expenditures that are coordinated with a candidate — or “made after a wink or nod” — often will be ‘as useful to the candidate as cash.’ ”

Even in its infamous Citizens United decision of 2010, which allowed independent groups to spend unlimited amounts of money, the U.S Supreme Court stressed that such groups had to be independent; they couldn’t coordinate with their favored candidates. “By definition, an independent expenditure is political speech presented to the electorate that is not coordinated with a candidate.”

The Wisconsin State Supreme Court simply chose to ignore that, just as it ignored and overran the Buckley and McConnell rulings.

And as the Brennan Center has noted, the U.S. Supreme Court has never said that coordinated expenditures are OK so long as the so-called independent group is not engaging in “express advocacy.” The Wisconsin State Supreme Court made that up on its own.

The special prosecutor should appeal that to the U.S. Supreme Court.

From Buckley to Citizens United and beyond, the U.S. Supreme Court has advocated disclosure of contributions. The decision by the Wisconsin State Supreme Court undermines these precedents.

Here’s how: In Wisconsin, if you’re running for governor, your richest donor can give you only $10,000, which you have to disclose. But now you can ask your billionaire friend to give $100,000 or $1,000,000 to an outside group and you can tell that outside group how to spend it (as long as it doesn’t run an ad saying, “Vote for” or “Vote against”). And the kicker is that this outside group doesn’t have to disclose where it got the $100,000 or the $1,000,000. In this way, our democracy in Wisconsin will drown in a sea of dark money.

In Buckley, the U.S. Supreme Court said that disclosure requirements were necessary to “deter actual corruption and avoid the appearance of corruption by exposing large contributions and expenditures to the light of publicity.”

The Wisconsin State Supreme Court decision runs 180 degrees counter to that.

For these reasons, the special prosecutor must appeal the decision of the Wisconsin State Supreme Court in the John Doe case and give democracy a chance in Wisconsin.