Three days after Gov. Scott Walker announced he was running for president, the Wisconsin Supreme Court ended a criminal campaign finance investigation involving his 2012 reelection campaign. Prosecutors suspected Walker's campaign of "coordinating" with several independent groups that were spending money on ads to help reelect him. But the state supreme court held that, because the ads did not explicitly say to "vote for" or against a candidate, Walker's campaign could coordinate with the groups. Walker's campaign has construed today's ruling as an exoneration, though the court stopped the investigation before any charges could be filed.
The court's ruling will essentially allow candidates in Wisconsin elections to operate outside of campaign finance law, routing donations through secretive groups. Although Wisconsin law prohibits coordination between candidates and outside groups for "political purposes," the four-justice conservative majority accepted the argument that this phrase must be limited to ads that expressly call for the election or defeat of a candidate. Any broader interpretation, the majority claims, would inhibit free speech and violate the First Amendment.
Justice Pat Crooks, in dissent, warned that the majority's decision is "an erosion" of state campaign finance laws "that will profoundly affect the integrity of our electoral process." Former Chief Justice Shirley Abrahamson's dissent called the holding "an unprecedented and faulty interpretation of Wisconsin's campaign finance law and of the First Amendment" and said it "delivers a significant blow to Wisconsin's campaign finance law." She pointed out that no federal appellate court had interpreted the First Amendment to prohibit bans on candidates coordinating with independent groups.
Justices Abrahamson and Crooks contended that the majority's reasoning was intended to meet its pre-ordained goal of ending the criminal investigation. Justice Abrahamson described the majority's opinion as a "blatant attempt to reach its desired results by whatever means necessary." Justice Crooks asked, "Has the majority abused its power in reaching this conclusion?" and accused the majority of a "rush to terminate this investigation."
Prosecutors found emails that revealed Walker was secretly raising funds for the Wisconsin Club for Growth. The ads being investigated did not use those "magic words" -- words that explicitly called on viewers to "vote for" or "vote against" -- the court's interpretation would render the investigation void. No prosecutor can investigate activities that aren't actually crimes. Justice Michael Gableman's opinion repeatedly states that "the investigation is closed," due to the ruling. In addition to supporting Walker, the groups being investigated have also spent $10 million to elect the four-justice conservative majority on the Wisconsin Supreme Court. The prosecutors have even raised the issue of whether two justices committed the same crime as Walker -- coordinating their campaigns with WMC and other corporate-funded groups. A brief filed with the court says the groups had "significant involvement in the election of particular justices," though it redacts the names.
Despite all this, the four conservative justices did not recuse themselves and threw out the case. The court's rule on recusal was co-authored by WMC, and it says that campaign cash can never be the sole basis for recusal.
Now that the court has narrowed state campaign finance law, the justices can openly coordinate with WMC and other groups. This will basically allow politicians in Wisconsin to accept unlimited, secret contributions with impunity, as long as the money is not used for ads that expressly say to vote for or against a candidate.
The court could succeed in sweeping this criminal investigation under the rug. The court has the final say on state law issues, but the U.S. Supreme Court could review the ruling, since it is based on the First Amendment. In her dissent, Justice Abrahamson also suggested that the U.S. Constitution may require the justices to recuse themselves. In 2009, the U.S. Supreme Court ruled that a West Virginia Supreme Court justice violated the constitution when he declined to recuse himself in a lawsuit against a coal company that spent $3 million to get him elected. No federal court has yet to apply this ruling to any other case, but the conflict of interest in this case is arguably more egregious than in the West Virginia case.
Billy Corriher is the Director of Research for Legal Progress at the Center for American Progress, where his work focuses on state courts and the influence of political contributions on judges.