Next week, the Supreme Court is scheduled to consider whether it will hear an appeal of a Wisconsin Supreme Court ruling that, last year, halted a criminal investigation and ordered the destruction of all the evidence it gathered. The case is about the seemingly peripheral issue of judicial recusal. But it brings together two of the biggest disrupters of American democracy today: the surge, after the Citizens United decision struck down limits on independent spending, of private influence in elections; and the politicization of the highest courts in many states. For the past eight years, Wisconsin has been a laboratory testing the toxicity of this combination.
In 2008, conservative businesspeople in Wisconsin recruited a county trial judge named Michael Gableman to challenge Louis Butler, a liberal justice on the Wisconsin Supreme Court, who was its first African-American member. In support of Gableman, Wisconsin Manufacturers & Commerce and the Wisconsin chapter of the Club for Growth, the conservative group funded by the Koch brothers’ network, spent an estimated $2.8 million. Gableman won with fifty-one per cent of the vote, giving the conservatives what turned out to be a critical majority on the court.
Gableman’s election raised an issue of serious concern around the country: When an organization, or an individual, that supported a judge’s election is a party to a case before him, shouldn’t that judge recuse himself? In 2009, by a 5–4 vote, the U.S. Supreme Court ruled that a state judge must recuse himself when spending by a party to a case had “a significant and disproportionate influence” on the outcome of the judge’s election. The Court reasoned that, “just as no man is allowed to be a judge in his own cause, similar fears of bias can arise when—without the consent of the other parties—a man chooses the judge in his own cause.”
Shortly after that decision, the League of Women Voters of Wisconsin Education Fund proposed a change in the recusal rules of the Wisconsin Supreme Court, so that a justice would have to recuse himself if a party in a case, or the lawyer or law firm handling it, had given a thousand dollars or more within the previous two years. In response, the Wisconsin Realtors Association and Wisconsin Manufacturers & Commerce submitted two opposing rule petitions, which the justices voted to adopt, without amendment, in October, 2009. Together, the rule changes meant that a justice did not have to recuse himself just because a litigant had contributed to a justice’s campaign or made an independent expenditure on its behalf. The court’s four conservatives made up the majority that approved the changes.
In January, 2010, the conservatives again approved the changes, with some minor tweaks in the language. That same day, the U.S. Supreme Court decided Citizens United v. Federal Election Commission, striking down limits on independent spending in elections by corporations, unions, and other organizations. “The appearance of influence or access” from such spending, the Court said, “will not cause the electorate to lose faith in our democracy. By definition, an independent expenditure is political speech presented to the electorate that is not coordinated with a candidate.” The decision unleashed a torrent of spending in American elections.
In November, 2010, Scott Walker was elected governor of Wisconsin, and Republicans won majorities in both houses of the state legislature. The Wisconsin Democracy Campaign estimated that Wisconsin Manufacturers & Commerce spent about nine hundred and fifty thousand dollars, and that Wisconsin Club for Growth spent about a hundred thousand dollars. As William Finnegan reported, Walker had a strong anti-union agenda, and moved to cut the salaries of teachers and other government employees and gut the rights of public-sector unions. The legislation was enacted even as protesters occupied the state capitol, capturing national and international attention.
A few months into Walker’s tenure, David T. Prosser, Jr., a conservative justice on the Wisconsin Supreme Court, faced a serious challenge from a liberal opponent, who made the election a referendum on Walker’s anti-union agenda. An e-mail, dated March 20, 2011, circulated among Walker insiders, which said, “David Prosser is in trouble. And if we lose him, the Walker agenda is toast.” Two days earlier, a state trial judge had imposed a temporary restraining order that kept the new law from going into effect. If the case went to the State Supreme Court, and liberals had recaptured the majority, Walker’s supporters were concerned that the court would strike down the core of the law.
Walker’s right-wing circle mobilized and raised two and a half million dollars of corporate funding in support of Prosser. The Wisconsin Democracy Campaign estimated that Wisconsin Manufacturers & Commerce spent $1.1 million, Wisconsin Club for Growth spent five hundred and twenty thousand dollars, and Citizens for a Strong America, which appears to be an offshoot of Americans for Prosperity, the Kochs’ political organization, spent nine hundred and eighty-five thousand dollars. Prosser won by only seven thousand votes after a recount—less than half of a per cent. In June, 2011, the conservative majority gave Walker the major legal victory he sought, upholding the new Wisconsin law that embodied “the Walker agenda.” The following month, the court weakened its recusal rules further, holding that “determining whether to recuse is the sole responsibility of the individual justice for whom disqualification from participation is sought.”
At the time, it was generally known that Democrats, incensed by Walker’s anti-union efforts, intended to file a petition to recall him as governor. On November 4, 2011, one of Walker’s supporters, on behalf of the Close Friends to Recall Walker committee, filed the first petition, so that the governor could begin fund-raising. The whole contest—all of the Republican, Democratic, and other campaigns, combined with independent groups—managed to spend a total of $80.9 million, more than twice the previous record, set in 2010. Walker plus Republican groups spent $58.7 million. The five Democratic candidates together spent $21.9 million on the primary and general election, and one independent candidate spent $305,204. Walker won, with 53.1 per cent of the vote.
In 2012, John Chisholm, the district attorney for Milwaukee County, alleged that Walker’s recall campaign, by coördinating its spending with independent groups like Wisconsin Club for Growth, had committed criminal violations of Wisconsin’s campaign-finance laws. Chisholm petitioned the Wisconsin Supreme Court for an investigation of the Walker campaign under the state’s unusual John Doe law, which allows investigators to work under a cloak of secrecy to shield people from arrest on groundless suspicion, encourage witnesses to speak without fear of reprisal, and keep those suspected of committing crimes from undermining the investigation.
Other Wisconsin district attorneys joined Chisholm in calling for an investigation, and recommended that Francis D. Schmitz be appointed as a special prosecutor to handle it. As I wrote last year, Schmitz thought that, under Wisconsin law, when a nonprofit group spends money on issue advocacy in coördination with a candidate’s campaign committee, the committee must report that spending as a contribution, either to it or to the candidate. He was building a case that Walker and his campaign organization, Friends of Scott Walker, had carried out “a criminal scheme” to avoid doing that kind of reporting.
In 2014, the Wisconsin Club for Growth persuaded a state trial court to shut down the John Doe inquiry. Last year, the Wisconsin Supreme Court upheld that ruling. As the Center for Media and Democracy has reported, “The conservative majority of the Wisconsin Supreme Court was elected with at least $10 million in spending by the groups under investigation.”
Last week, the Guardian published about fifteen hundred pages of documents from the John Doe investigation, which had been leaked to the paper. The documents, as the Guardian put it, show “how anxious Walker's circle were about the threat, as they saw it” in 2011 to the conservative majority of the Wisconsin Supreme Court. The documents reveal that, with R. J. Johnson serving as both Walker’s top campaign adviser and the leader of Wisconsin Club for Growth, the campaign and the supposedly independent group were at times one and the same. When it came to approving ads and communications, Johnson seemed to speak for both organizations. Rather than exposing a political machine that was attempting to conceal its operations, the Guardian found one that operated as though it were doing what was necessary and proper to win elections after Citizens United.
The petition that the Supreme Court will review next week focusses on David Prosser and whether he should have recused himself when the Wisconsin Supreme Court ended the John Doe investigation last year. It is clear enough that both Prosser and Michael Gableman, who was also elected to the court with significant support from the Wisconsin Club for Growth, should have recused themselves. By failing to do so, they violated due process of law by not giving the Wisconsin district attorneys a fair and impartial hearing, and further tarnished the reputation of the Wisconsin Supreme Court. If the Supreme Court does not review this case and begin to repair the rule of law in Wisconsin, it will endorse the rule of politics that has done so much damage to the state—and is doing so much damage to the country.
