On June 29, the Center for Media and Democracy (CMD), the Brennan Center for Justice and Common Cause filed a brief with the U.S. Supreme Court urging the justices to overturn the Wisconsin Supreme Court ruling that shut down John Doe 2.
John Doe 2 was a criminal investigation into potentially illegal campaign coordination between Gov. Scott Walker’s campaign and groups that spent millions to help him survive the 2011–2012 recall elections.
The brief argues in part that the Constitution’s guarantee of a fair and independent tribunal was violated in the case due to the extraordinary conflicts of interest of two justices.
Justices David Prosser and Michael Gableman denied a motion from the special prosecutor to step aside because they’d received millions of dollars in support from the defendants in the case. According to the brief, they then proceeded to: help “cancel oral argument, issue sweeping secrecy orders, halt the investigation, fire the special prosecutor, order the evidence returned and copies destroyed, and dramatically curtail Wisconsin’s campaign finance law, rendering the longstanding limits and other restrictions the state places on contributions to candidates virtually meaningless.”
According to the brief, inappropriate actions were taken by the state’s high court to impede the prosecutors’ appeal to the U.S. Supreme Court.
Specifically, the brief argues that:
- Special prosecutor Fran Schmitz filed a Motion for Recusal asking justices Prosser and Gableman to step aside and raising concerns about two other justices. Those two justice and two others have received a combined $10 million since 2007 from the defendants in the case.
- The special prosecutor may have unearthed documents suggesting that justices Prosser and Gableman or their campaigns benefited from the same kind of coordinated activities by the subjects of the investigation as Walker did. They may have had direct campaign-related interactions with the groups under investigation. Still, the two justices refused to recuse themselves from the case.
- The activities of the groups under investigation in John Doe 2 aided the election of Prosser and Gableman to an even greater degree than in a case on which the Supreme Court has already ruled. In Caperton v. Massey, a West Virginia justice helped reverse a multi-million dollar verdict against a coal baron whose spending got him elected. The ruling in that case, which was issued the same day as the Citizens United decision, the U.S. Supreme Court intervened due to the potential corruption.
- The expenditures for Prosser and Gableman were made during the same time period and involved the same players as the actions under investigation in the John Doe 2 case. The defendants and their offshoots spent a combined total of $3.2 million to support Gableman’s election, nearly eight times the $411,000 spent by Gableman’s campaign itself.
- Shortly after the recall elections, one of the defendants, Wisconsin Manufacturers & Commerce, issued a press release boasting of the $6.75 million it had spent on the previous three Supreme Court elections.
CMD’s brief notes: “Not only were the justices put in a position of making rulings that could cost their biggest campaign supporters millions in civil fines, but upholding the district attorneys’ theory of prosecution could have sent those supporters to jail. … As in Caperton, the amount spent by the movants and the organizations they controlled ‘eclipsed’ the amount spent by other supporters of Prosser and Gableman, as well as the amount spent by their own campaign committees.”
As noted in Schmitz’s motion to recuse,“Two of the movants had ‘direct involvement’ with the re-election campaign of one justice; the treasurer of Walker’s campaign committee was also associated with the campaign committee of one justice; and one justice’s campaign had a ‘close connection’ with more than one movant.”
Schmitz is a former anti-terrorism prosecutor for ex-President George W. Bush’s Department of Justice.
The motion also noted “there is a potential overlap between the activities” of Prosser’s campaign “during the … election (that’s) within the scope of the investigation now before this court.” Prosser was re-elected in 2011, the same year of the Senate recall campaigns.
According to the brief, the criminal investigation “appears to have turned up at least one interaction with a justice’s campaign that ‘gave rise to a reportable contribution as a coordinated expenditure’ — the activity at the heart of the case and the court’s decision. As a result of that activity, ‘the Justices will be deciding issues that may well reflect back on their own campaign committees and any interaction that may have taken place between these committees’ and movants in the case.’”
CMD’s brief to the U.S. Supreme Court also urges the Court to overrule the Wisconsin Supreme Court for legal errors in its analysis of binding precedent allowing legislatures to limit coordination that would circumvent anti-corruption rules.
The brief states that the Wisconsin Supreme Court’s ruling is wholly at odds with … longstanding decisions, as well as the holding of the U.S. Court of Appeals in this very same case. In O’Keefe v Chisholm (2014), the court ruled that “no opinion issued by the Supreme Court, or by any court of appeals, establishes (‘clearly’ or otherwise) that the First Amendment forbids regulation of coordination between campaign committees and issue-advocacy groups — let alone that the First Amendment forbids even an inquiry into that topic.”
In summation, the brief argues that the facts in John Doe 2, the grave legal errors made by the state court, the potential bias of some of the state justices, and the extraordinary intervention by that court provide compelling reasons for the U.S. Supreme Court to hear the case and repudiate the decision of the Wisconsin Supreme Court.
Hearing expected later this year
The U.S. Supreme Court is expected to consider the prosecutors’ petition later this year.
Last year, before the Wisconsin Supreme Court intervened in the state criminal prosecution of John Doe 2, federal prosecutors were investigating illegal campaign coordination similar to that alleged in the Wisconsin case under parallel federal laws. In Virginia, a “campaign finance manager and political consultant pleaded guilty … in the Eastern District of Virginia for coordinating $325,000 in federal election campaign contributions by a political action committee (PAC) to a Congressional campaign committee.”
As the U.S. Department of Justice stated in that case, “The significant prison sentence imposed on Tyler Harber should cause other political operatives to think twice about circumventing laws that promote transparency in federal elections,” said Assistant Attorney General Caldwell. “As the first conviction for illegal campaign coordination, this case stands as an important step forward in the criminal enforcement of federal campaign finance laws. Illegal campaign coordination can be difficult to detect, which is why we strongly encourage party or campaign insiders to come forward and blow the whistle.”
In the Wisconsin case, the targets of the investigation and related search warrants have denied any wrongdoing and claimed in court and through their allies in right-wing media that any coordination was protected by the First Amendment, in light of the Citizens United decision. That claim was embraced by the majority on the Wisconsin Supreme Court, despite justices’ manifest conflicts of interest in ruling on those claims.
The brief submitted by CMD, the Brennan Center, and Common Cause refutes that claim and highlights the overwhelming legal precedent supporting state and federal rules that limit coordination to help guard against the corruption of elected officials, including judges.
CMD, an investigative watchdog organization based in Madison, Wisconsin, has been reporting on John Doe 2 since 2013 when the public first learned that a bipartisan group of state prosecutors had begun a criminal investigation into suspected illegal coordination spearheaded by Walker and his team to orchestrate ads from outside groups trying to aid Republican senators and Governor Walker himself as they faced potential recall elections stemming from Walker’s extremely controversial legislative agenda.
A prior criminal investigation of Scott Walker’s staff and associates, during the time he served as Milwaukee County Executive, resulted in 15 felony indictments for six people who have been sentenced for a variety of crimes including misconduct in office, including three Walker aides. Scott Walker was not charged in that case known as “John Doe I.”
Click here to read CMD’s full brief
Louis Weisberg edited this article from a release provided by CMD.