Presidential candidate Scott Walker won a major legal victory on July 16, when Wisconsin’s Supreme Court ended a secret investigation into whether the Republican’s gubernatorial campaign illegally coordinated with conservative groups during the 2012 recall election.
No one has been charged in the so-called John Doe probe, Wisconsin’s version of a grand jury investigation in which information is tightly controlled. But questions about the investigation have dogged Walker for months.
“Today’s ruling confirmed no laws were broken, a ruling that was previously stated by both a state and federal judge,” said Walker’s spokeswoman AshLee Strong. “It is time to move past this unwarranted investigation that has cost taxpayers hundreds of thousands of dollars.”
Prosecutors accused Walker and the groups of illegally coordinating their campaign efforts in violation of state law. They denied wrongdoing.
Barring an appeal to the U.S. Supreme Court, the ruling makes Walker’s campaign that much smoother as he courts voters in early primary states.
The case centers on political activity conducted by Wisconsin Club for Growth and other conservative organizations during the 2012 recall, which was spurred by Democrats’ anger over a Walker-authored law that effectively ended collective bargaining for most public workers.
The court’s conservative majority cited free speech in effectively tossing out the case, ruling state election law is overbroad and vague in defining what amounts to “political purposes.”
Justice Michael Gableman, part of the court’s conservative majority — which includes David Prosser, Annette Ziegler and Patience Roggensack — praised the conservative groups for challenging the investigation.
“It is fortunate, indeed, for every other citizen of this great State who is interested in the protection of fundamental liberties that the special prosecutor chose as his targets innocent citizens who had both the will and the means to fight the unlimited resources of an unjust prosecution,” Gableman wrote in the majority opinion.
Gableman wrote that prosecutors alleged the groups and the campaign coordinated on issue advocacy, communications that don’t expressly call for a candidate’s defeat or victory, and should have reported their spending and abided by fundraising limits.
Regulations governing coordination for political purposes must be limited to express advocacy, that is, advertisements and communications that clearly call on voters to defeat or elect a specific candidate, Gableman wrote. With that limitation in place, Wisconsin’s law doesn’t prohibit any of the coordination the prosecutors believe was illegal.
“To be clear, this conclusion ends the John Doe investigation because the … prosecutor’s legal theory is unsupported in either reason or law,” Gableman wrote. “Consequently, the investigation is closed.”
Gableman and the court’s other conservative justices received millions of dollars in donations from Wisconsin Club for Growth and at least two other groups named in the probe. In February, lead prosecutor Francis Schmitz asked unnamed justices to recuse themselves to avoid the appearance of impropriety, but the justices didn’t respond.
Heavily financed by the groups targeted in the John Doe case, Chief Justice Patience Roggensack outspent rival Ed Fallone nearly 5-1 in her successful 2013 bid to retain her seat on the court. Roggensack is one of Gov. Scott Walker’s most reliable allies on the Wisconsin Supreme Court.
Roggensack and the court’s other conservatives have maintained that no judge should ever be forced into recusal, but rather that it should be left to the individual justice’s discretion. That’s also the practice followed by the U.S. Supreme Court.
Schmitz had no immediate comment, saying he needed time to read the ruling.
Justice Shirley Abrahamson, one of two liberals on the seven-member court, sharply disagreed in a dissent that accused the majority of a faulty interpretation of state law.
“The majority opinion 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,'” Abrahamson wrote.
Republicans had called the investigation, launched by Milwaukee County District Attorney John Chisholm, a Democrat, a partisan witchhunt. Wisconsin Club for Growth and its director Eric O’Keefe filed a federal civil rights lawsuit last year seeking to halt the probe, arguing the investigation violates their free speech rights. U.S. District Judge Rudolph Randa sided with the club but a federal appellate court later tossed out the lawsuit, saying the issue belonged in state courts.
The club and O’Keefe then turned to the state Supreme Court, which is controlled by a four-justice conservative majority.
Abrahamson was joined in a separate dissent by swing justice Patrick Crooks. The court’s other liberal justice, Ann Walsh Bradley, recused herself because her son works for a law firm involved in the case.
The high court’s partisan nature has long been exceptionally public, including a physical confrontation between Prosser and Bradley in 2011 and, just months ago, a bitter transition in leadership as Roggensack took over as chief justice from Abrahamson.
Howard Schweber, an associate professor of political science and legal studies at the University of Wisconsin-Madison, said before the ruling that prosecutors could seek review by the U.S. Supreme Court, possibly arguing bias, if they lost.
Reaction to the development …
> Wisconsin Manufacturers & Commerce CEO Kurt R. Bauer: “WMC is very pleased that the Wisconsin Supreme Court ruled today in favor of constitutionally protected free speech and association. It sends a clear message that the law will not tolerate government officials who abuse their vast powers and unlimited financial resources to harass and intimidate a select group of law abiding citizens and organizations.”
> Matt Rothschild, the executive director of the Wisconsin Democracy Campaign: “It is not only regrettable; it is downright dangerous. …The decision is downright dangerous because it goes further than any previous court decision in legalizing coordination with so-called issue-advocacy groups, which will make a mockery of campaign contribution limits.”
> Wisconsin Attorney General Brad D. Schimel: “This closes a divisive chapter in Wisconsin history, and the assertive recognition of First Amendment rights by the Wisconsin Supreme Court protects free speech for all Wisconsinites. The Court’s decision leaves no doubt that the John Doe investigation is over.”
> Senate Judiciary Chairperson Van Wanggaard: “Today’s Supreme Court decision shutting down the renegade Government Accountability Board’s theory of campaign finance laws is a complete victory for free speech. But there is still work to do.”
> Common Cause of Wisconsin’s Jay Heck: “As expected, a highly compromised Wisconsin Supreme Court majority has issued a highly flawed decision today ending the John Doe investigation of possible illegal coordination between Governor Scott Walker and his 2011-2012 recall campaign with outside special interest groups. The decision should be appealed to the U.S. Supreme Court.”
> One Wisconsin Now executive director Scot Ross: “It’s clear that one party rule in the legislative, executive and judicial branches in Wisconsin means Scott Walker and his cronies are free to run amok, ignoring the rules whenever it gives them a partisan advantage and looting the state for their campaign benefactors.”
Editor’s note: This story is developing.