TPM Cafe: Opinion

The Inside Story of the Crony Court that Deep-Sixed the Scott Walker Probe

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AP Photo / Joe Skipper

If this all seems dizzying, it is. And that’s the idea. Wisconsin Club for Growth. Wisconsin Manufacturers and Commerce. Citizens for a Strong America (another 501(c)(4) run by R.J. Johnson). Friends of Scott Walker. Wisconsin Right to Life. United Sportsmen of Wisconsin. A networked array of opaque or less-than-transparent organizations intended to collect and distribute campaign funds on Walker’s behalf and under Walker’s control, but without fingerprints or knowledge of who was making the donations. Welcome to campaign finance in the 21st century, where it’s almost impossible to track how the money flows unless an insider decides to leak a document or you can get your hands on a subpoena.

Walker and his supporters have insisted that the John Doe investigation of his recall election was a partisan “witch hunt” undertaken by “big government special interests” – a phrase Walker usesoften and generically to demagogue his political rivals. But under Wisconsin law as it was interpreted way back in 2002, coordinating outside campaign expenditures to evade disclosures and contribution limits was a crime. That year, the leaders of the state senate (a Democrat) and the state’s lower chamber (a Republican) were charged with felonies for engaging in activities similar to what Walker’s team had done; one served nine months in jail, the other pled guilty to a misdemeanor after winning an appeal.

Before being an object of litigation, the John Doe investigation into Walker’s recall campaign had not only turned up evidence of coordination through Wisconsin Club for Growth; it had also unearthed a pay-to-play revelation involving a mining company called Gogebic Taconite that secretly gave $700,000 to the group to help flip two state senate seats to Republicans and pass a deregulation bill enabling the company to open the state’s largest open-pit iron ore mine. The company, according to one former Democratic state senator, “bought the Legislature and co-opted them into participating in one of the biggest scams in Wisconsin history.” (The mine closed earlier this year after iron ore prices dropped; Walker blamed the Environmental Protection Agency). Had the John Doe investigation not probed Walker’s recall, that donation would likely never have come to light.

Now, however, that investigation is over. For the last eighteen months the Wisconsin Club for Growth and conservative allies have been arguing in court that prosecutors should back off – not because they did not do what has been alleged, but because Wisconsin’s election laws are too stringent in a post-Citizens United world. In May 2014 federal judge Rudolph Randa, who has attended several all-expenses-paid trips to conservative junkets funded by the Charles G. Koch Charitable Foundation and the Lynde and Harry Bradley Foundation (a group backing Walker’s hollowing out of tenure at the University of Wisconsin), ordered prosecutors to “cease all activities related to the investigation, return all property seized in the investigation from any individual or organization” and, in an unusual step, “permanently destroy all copies of information and other materials obtained through the investigation.” An appeals court ruling soon stayed that order, buton Thursday the Wisconsin Supreme Court, by a 4-2 party line vote closed the investigation and ordered evidence destroyed because Wisconsin’s campaign finance laws are 'so sweeping that its sanctions may be applied to constitutionally protected conduct which the state is not permitted to regulate.”

Walker and his associates, in other words, could not have broken Wisconsin campaign finance laws since those laws will no longer be enforced.

Wisconsin has a historical reputation as a seat of good government and rational, evidence-based policymaking centered around democratic ideals (think John Dewey). But as Scott Walker makes his way to the national stage promising Republicans a national version of the ‘divide and conquer’agenda he’s implemented in Wisconsin, it’s worth remembering for a moment that while Walker didn’t write today’s ruling, he and this supreme court majority are linked. Thursday’s decision is the fruit of a years-long collaboration among Wisconsin conservatives, with national institutional support, to hack away at the state’s campaign finance laws as a way to ensure down-ballot victories and enact a maximalist legislative agenda.

To get a sense of just how aggressive the court’s majority has become, consider that in 2010 the court changed its own rules so judges would not only be able to vote in cases where they had received election contributions from lawyers or parties who might benefit from the outcomes, but they would also be able to hear cases where they had received support from the parties themselves.

When this change was put in place, there was already a U.S. Supreme Court decision to guide Wisconsin’s justices: Caperton v. Massey.

That 2009 case arose after two coal company executives – one of them Don Blankenship of Massey Energy, best known for the 2010 Upper Big Branch Mine disaster that killed 29 miners – took a case to the West Virginia Supreme Court of Appeals in 2004. Seeking to make the venue friendlier weeks before a judicial election, Blankenship created a Section 527 non-profit called (wait for it) “And for the Sake of Kids” and funneled $3.5 million of own fortune toward ousting an incumbent justice. That sum was vastly more than either of the candidates spent, and thousands of times more than Blankenship could have donated to the eventual victor if he’d been giving as an ordinary citizen.

The winner of that race, newly-elected Justice Brent Benjamin, subsequently joined two 3-2 majority decisions that benefitted Blankenship by reversing lower court rulings and tossing out a $50 million judgment against Massey. Caperton, the plaintiff, had tried to force Benjamin to recuse himself from those votes, but the justice declined. Caperton appealed to the the Supreme Court in its 2009 term and, in a 5-4 decision, Anthony Kennedy wrote for the majority that “there is a serious risk of actual bias - based on objective and reasonable perceptions - when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case by raising funds or directing the judge's election campaign when the case was pending or imminent.” In other words, Blankenship’s outsized influence in the election created such an obvious conflict of interest in the courtroom that it violated Caperton’s right to due process.

Sounds reasonable, right?

Even before you get into the slippery slope warnings in Chief Justice Roberts’s dissent, predicting endless litigation over judicial bias, or Antonin Scalia’s mocking of the majority as pursuing a “quixotic quest to right all wrongs and repair all imperfections through the Constitution,” it was pretty clear that as Kennedy anticipated a Citizens United world the court could find five votes to set a standard of behavior among judges to ensure that their votes weren’t for sale or perceived to be so.

But not so in Wisconsin.

In 2009, just months after the Caperton v. Massey decision was reached, the Wisconsin Realtors Association and Wisconsin Manufacturers and Commerce (remember them?) petitioned the state’s high court to relax their recusal rules. Two weeks after the Wisconsin Manufacturers and Commerce petition was received, the court’s four conservative justices hurried to accept its recommendation. Two of those justices, Michael Gableman and Annette Ziegler, had just won election with big money support from a third-party group called… Wisconsin Manufactures and Commerce.

When it was pointed out that the court had adopted, verbatim, two petitions that they had not read carefully enough to realize were in conflict in minor ways, the conservative majority was forced to hold a second session where they discussed their recusal policy. On that day, January 21, 2010, Justice Michael Gableman argued that the Supreme Court’s Citizens United decision had rejected the idea that campaign contributions could ever be said to affect a judge’s decisions.

Lest you think that Justice Gableman had spent days or weeks pondering how he might strategically deploy Citizens United to his advantage in this debate, think again. He raised this point the same day Citizens United was published.

Collectively, those four justices have thus far received just under $6 million from Wisconsin Manufacturers and Commerce, and about $2 million from Wisconsin Club for Growth – the two groups being investigated for wrongdoing and who, along with the Walker campaign, launched the case against their prosecution.

The groups helped pick the judges. Then one of the groups was allowed to rewrite the state’s rules so those judges could sit on cases where they are a party. Then the groups persuaded those judges to shut down an investigation into whether they broke campaign finance laws by declaring those laws unconstitutional.

Even in the post-Citizens United world, the U.S. Supreme Court has staked out the position that elected judges are, according to Chief Justice Roberts, “not politicians.”

Somebody should tell him about Wisconsin.