Wisconsin Governor Scott Walker is facing an investigation into whether his 2012 recall campaign illegally coordinated with nonprofit groups that spent money to support him. Campaign finance laws prohibit “coordination” because they would allow candidates to run shadow campaigns outside of campaign finance law. The Center for Media & Democracy’s PRWatch said, “Prosecutors gathered evidence of Walker secretly raising millions of dollars for the supposedly ‘independent’ nonprofit Wisconsin Club for Growth (WiCFG), with the express purpose of bypassing campaign finance disclosure laws.” The secret donations were revealed to include money from a mining company that received permission to open a mine soon after Walker won reelection.
The investigation is at a preliminary stage, called a John Doe proceeding under Wisconsin law, which determines whether charges are filed. PRWatch said that “Walker and his allies have fought the probe not by denying coordination, but by claiming the rules don’t apply to so-called ‘issue ads’ that stop short of expressly telling viewers how to vote.” The Wisconsin Supreme Court is considering one of the many lawsuits filed to stop the investigation.
In a newly released court filing, the prosecutor in the case raised the question of whether one or two of the justices hearing the case are implicated in the same kind of scheme. Two groups suspected of coordinating with Walker’s campaign have also spent $10 million to elect the four-justice conservative majority. The prosecutor’s heavily redacted brief also suggests that two justices, or, at least, their campaigns, may have committed the same offense that is at the heart of the Walker investigation—coordinating with dark money groups to get reelected.
Special prosecutor Francis Schmitz—a Republican who voted for Walker in 2012—noted that the groups “had significant involvement in the election of particular justices,” though the document redacts the names of the justices and the groups. (The suspects in a grand jury or John Doe proceeding remain anonymous, unless and until charges are filed.) While the justices are not named, the brief refers to the justices benefitting from money spent by John Doe groups to support the reelection of the justices, and the groups have spent money to support the election of all four members of the court’s conservative majority.
Schmitz’s brief also referred to a “history of control, collaboration and coordination” between the groups and “political campaign committees that may potentially include judicial candidates.” The brief describes persons who worked for both a supreme court campaign and the John Doe groups. A redacted portion quotes an email that seems to provide evidence that a group was “actively involved” in a justice’s reelection campaign. Other redacted portions seem to describe contacts and “close connections” between the justice’s campaign and John Doe groups, before concluding:
Justice David Prosser was up for reelection in 2011, when Walker faced a recall election. At the time, the Wisconsin Supreme Court was hearing a legal challenge to Walker’s controversial law restricting collective bargaining rights. Both sides in the debate—unions and big business—spent big in the supreme court election. Two of the John Doe groups spent around $2.5 million to reelect Justice Prosser—much more than the justice’s own campaign.
Schmitz’s brief asked two of the justices to recuse themselves. One of the groups, Wisconsin Manufacturers and Commerce, also helped to write the court’s rule on conflicts of interest, which says that campaign cash does not in and of itself justify recusal. The four conservative justices have given no indication that they will not participate in the case, which could be decided any day now.
The court could throw out the investigation based on a technicality under state law—likely ending the investigation—or it could issue a much broader ruling that the First Amendment forbids bans on coordination between candidates and nonprofit groups. (A federal judge accepted this argument, but a higher court reversed this decision.) If the court rules broadly, then the U.S. Supreme Court could review the case.
Even if the court rules solely based on state law, there is still a chance that a federal court could find that the conflict of interest is similar to the issue in the 2004 Caperton v. Massey Coal case, in which a CEO spent $3 million to elect a West Virginia Supreme Court justice. The U.S. Supreme Court ruled that the justice’s failure to recuse himself in a $50 million lawsuit against the CEO’s company violated the other party’s right to Due Process.
Barring review by the U.S. Supreme Court, the four conservative Wisconsin justices can shut down this criminal investigation into groups that spent $10 million to elect them. It’s also possible that at least one of them could halt a criminal probe into their own campaign activities. Schmitz argued that “the Justices will be deciding issues that may well reflect back on their own campaign committees,” and he said that the extent of the justices’ coordination would remain “unknown, possibly forever if the investigation is not allowed to continue.”