A criminal probe in Wisconsin targets several major spenders on state supreme court races. Yet the justices who benefited from that spending will likely get to decide whether this probe moves forward.
Wisconsin prosecutors have been conducting a 2011-2012 campaign finance investigation targeting Republican candidates in the 2011 and 2012 recall elections and interest groups that spent money to support them. Though some targets of the investigation have not been publicly named, two business groups and a former aide to Gov. Scott Walker (R) have been named as targets.
State campaign finance law prohibits independent spenders—many of which can accept unlimited, secret contributions for political ads—from “coordinating” with candidates’ campaigns. According to the Wall Street Journal, the trial court judge found that the groups did not cross the line into “coordinating” with Republican candidates because the groups’ ads did not explicitly ask voters to “vote for” or “against” candidates. After the court of appeals allowed the investigation to move forward, the groups on Wednesday asked the Wisconsin Supreme Court to hear the case and potentially end the investigation.
Two of the targets of the investigation — Wisconsin Club for Growth and Citizens for a Strong America — are also big spenders on judicial races. Indeed, according to the Brennan Center for Justice, the two groups spent $1.8 million in 2011 on just one candidate — conservative Justice David Prosser.
Yet, despite the potential conflict of interest presented by Prosser and some of his colleagues sitting on a case that concerns his donors, they are under no obligation to recuse. The court’s recusal rule was co-written by a third business group, Wisconsin Manufacturers and Commerce, that reportedly spent more than $5 million supporting conservative members of the Wisconsin Supreme Court. Under this rule, justices are free to sit on cases involving their donors.
Because many of the details of this case are secret, it’s not entirely clear what role the specific groups that donated to Wisconsin Supreme Court races are playing in this particular litigation — a report in the Milwaukee Journal Sentinel indicates that “[t]hree anonymous targets of a John Doe investigation of the recall elections” filed this appeal. Nevertheless, the Center for Media and Democracy noted that, “An order from the Wisconsin Supreme Court halting the John Doe campaign finance investigation would directly affect the same organizations that helped put four of the justices on the bench, calling into question whether any of those justices can be impartial.” It’s also worth noting that Wisconsin Club for Growth, which provided Citizens for a Strong America with all $4.62 million of its operating budget in 2011, filed a lawsuit seeking to stop the investigation at the heart of this litigation.
The Wisconsin Supreme Court, like the citizens of the state, has become more deeply divided into liberal and conservative factions in recent years. In 2011, as progressives angry about Walker’s union-busting bill organized recall elections for Republican legislators, the court heard a constitutional challenge to Walker’s bill. While the court was deliberating the case, the pressure of Justice Prosser’s reelection campaign and the court’s partisan schism culminated in a physical confrontation. Justice Ann Walsh Bradley claims that Justice Prosser put her in a “chokehold,” although this claim did not lead to criminal charges.
As the political pressure mounted, the court also voted more often along party lines. A 2013 Center for American Progress report examined the court’s rulings in tort cases and found an increase in party-line votes. The report also found that, “As the campaign cash poured in over 10 years, the percentage of unanimous decisions fell from 83 percent to just 25 percent.”
Because of the secretive nature of the “John Doe” investigation, we may not immediately know how the justices vote in the case. But given the court’s clear partisan divide, and its previous actions in highly politicized cases, this case could easily divide on partisan lines as well.