The U.S. Supreme Court has an “unprecedented opportunity” to address the legality of coordination between campaigns and supposedly independent groups if it hears a case related to Wisconsin’s halted John Doe investigation into Gov. Scott Walker’s recall campaign.
That’s the lead argument presented by three Wisconsin district attorneys in a redacted filing posted online Friday by University of California-Irvine law professor Rick Hasen. The filing was not available on the court’s website and Hasen declined to say how he obtained it.
Hasen said there’s a better-than-average chance the court will take up the case out of more than 7,000 petitions it receives each year, given it’s a high-profile case of which the justices are likely already aware.
“Everything about this case is unusual,” Hasen said.
As an example, Hasen, who specializes in election law, said he has never seen a petition filed with so many sections blacked out, including parts of the key questions presented to the court.
Those questions include whether the First Amendment protects coordination between a candidate and an issue-advocacy group, as the Wisconsin Supreme Court ruled in July, whether state prosecutors are entitled to a hearing before a panel of impartial justices, and whether justices must recuse themselves in certain cases.
Milwaukee County District Attorney John Chisholm, Dane County District Attorney Ismael Ozanne and Iowa County District Attorney Larry Nelson submitted the petition this week, writing the Wisconsin Supreme Court’s decision was “described as the ‘end of campaign finance law,’?” and “rewrote First Amendment jurisprudence.”
In the petition they lay out their case, which lines up with previous accounts that allege Walker raised money for the Wisconsin Club for Growth, which in turn spent money to help him win his recall election in June 2012. Previously, state law held that such donations must be reported and were subject to campaign finance limits. Because Wisconsin Club for Growth is supposedly a social welfare nonprofit with limitations on its political spending, it’s donations are not public record.
The prosecutors specifically cite $1.5 million contributed by John Menard Jr., owner of the home improvement retail chain Menards, and $700,000 from Gogebic Taconite to the club as examples of “secret contributors” who “received special favors.”
In the case of Gogebic, the company helped rewrite state environmental laws in an ultimately unsuccessful effort to build a massive iron ore mine in northern Wisconsin. Menard’s company was awarded up to $1.8 million in tax credits from the Wisconsin Economic Development Corp., the prosecutors noted.
They also argue justices Michael Gableman and David Prosser should have recused themselves from the case given the groups under investigation spent $3.34 million during Prosser’s 2011 re-election campaign — and previously took additional action to help elect Gableman. The reasons why Gableman should have recused himself are mostly blocked from view in the redacted document.
Subject to secrecy order
The document was blacked out consistent with other legal filings in the John Doe case, which has been subject to a secrecy order since September 2012. The identities of those under investigation, who have successfully challenged its legality so far, have been kept hidden in court documents, but public records and accidental court leaks have showed they include Walker and his campaign, the Wisconsin Club for Growth and its director Eric O’Keefe, and Walker advisers R.J. Johnson, Keith Gilkes and Kelly Rindfleisch.
The prosecutors state in the petition that they have honored the secrecy order, while certain information has leaked “because certain respondents have conducted a campaign of lies and disinformation intended to impugn the motives of the investigation.”
The prosecutors argue that the actions of the Wisconsin Supreme Court belie prejudice against them. They highlighted the court’s July ruling citing reports of “pre-dawn raids” to execute search warrants in October 2013, a characterization the prosecutors have disputed as overly sensational.
They argue the court’s initial order to destroy evidence from the case without any party asking for such destruction was unprecedented. The court later amended its order so that the special prosecutor leading the investigation would have to turn over the evidence to the court.
They also note the state court denied their motion to allow an outside law firm familiar with Supreme Court appeals to handle the case thereby “refusing to recognize the right of the district attorneys to be represented by counsel.”
“The court wrote no need has been shown by the petitioners whose appellate experience is limited to traffic and misdemeanor matters in the state court of appeals,” they wrote.
Edward Greim, a lawyer representing one of the unnamed parties in the case, said in response to the filing that the investigation was unauthorized under Wisconsin law.
“It was a massive overreach, and it was not a close call,” Greim said.
Rick Esenberg, president of the conservative Wisconsin Institute for Law and Liberty, said the state court’s reason for striking down the state’s anti-coordination law wasn’t limited to the First Amendment. It also found the law didn’t adequately define coordination. For that reason he said it’s very unlikely the federal court would review the case.
As for whether Prosser and Gableman should have recused themselves, Esenberg said the challenge of the prosecutors’ argument is that it creates a problem for all judicial elections where partisan groups are involved.
“You can’t go after all the conservative advocacy groups and then say it means conservatives must recuse themselves,” Esenberg said. “This is a poor vehicle to sort that out.”