Arguably an overreach, this ruling came as no surprise to legal and political observers, given that the Wisconsin Supreme Court majority consists of conservatives who benefited from the same kind of dark-money campaigning from the same or same kind of supposedly independent groups with which the Scott Walker campaign allegedly coordinated. That seems contrary to a plain reading of the state's campaign finance law. Nevertheless, via the Milwaukee Journal Sentinel, here's the crux of the court's trenchant, 4-2 decision today:
"To be clear, this conclusion ends the John Doe investigation because the special prosecutor's legal theory is unsupported in either reason or law," [Justice Michael] Gableman wrote. "Consequently, the investigation is closed. Consistent with our decision and the order entered by Reserve Judge (Gregory) Peterson, we order that the special prosecutor and the district attorneys involved in this investigation must cease all activities related to the investigation, return all property seized in the investigation from any individual or organization, and permanently destroy all copies of information and other materials obtained through the investigation."
This ruling is, in its own way, similar to the way the U.S. Supreme Court majority summarily shut down the Florida recounts in 2000 and awarded the presidency to Republican candidate George W. Bush by fiat. In that case, the court said continuing the recount, which was trending toward Al Gore, could cause harm to Bush. Ya think? A similar kind and quality of legal reasoning was applied today in Wisconsin.
The plaintiffs in the Wisconsin case apparently argued that the investigation violated their right to freely associate under the First Amendment. In other words, they characterized their coordination with candidates as a free-speech issue. The plaintiffs were, however, also upset that their names had been dragged through the mud. That was ironic, given that one of the eventual plaintiffs outed himself via an op ed column in the Wall Street Journal.
It was further ironic that the Wisconsin Supreme Court took the unusual step of not listening to oral arguments in public session, instead deciding the entire case behind closed doors. Message: Closed doors are good, except when we say they're bad.
But if law enforcement agencies are banned from investigating certain suspected crimes -- on the basis that a court could study the law and simply rule the investigation itself out of order before charges could be filed and the case assigned to another court -- how do prosecutors and police ever decide to press charges or seek justice? This ruling completely short-circuits the judicial process. It may even serve as an inducement to break the law and then seek retroactive salvation.
This decision involved a secret "John Doe" investigation by districts attorneys in several Wisconsin counties. The "Doe" process is similar to grand jury proceedings in other states, but is overseen by a judge without a panel of citizen jurors. Depending on results of the investigation, district attorneys can choose to issue formal criminal charges which are heard in open court and in front of a jury.
What's next? The state's high court tossing out a grand-jury-style inquiry into organized crime, on the basis that those criminal suspects likewise have a right to freely associate without pesky investigations by the criminal justice system? Never mind their possible day in court on resulting charges; they have a right not to be regarded as suspects in the first place. Deal-making is talk, talk is protected speech!
The Doe proceeding has been used effectively in Wisconsin for many years in political and conventional criminal cases, including about 15 years ago, when an earlier case of political corruption led to convictions of several Wisconsin state legislators from both parties and the end of a political caucus system operating within the halls of the state Capitol. In today's political environment, that case may have ended with no charges and no limits on political activity within the halls of government.
The state Supreme Court majority basically did everything the plaintiffs asked, ending the stalled Doe inquiry in mid-flight, after the ruling conservative majority (who make the similar majority on the U.S. Supreme Court look reasoned, neutral and scholarly) summarily and pre-emptively re-interpreted the state's campaign finance laws. No charges or convictions required to reverse a possible court conviction.
For dessert, the Wisconsin Supreme Court majority ordered destruction of all evidence collected by the Doe investigators to date. Which arguably is going to put quite the damper on any future attempts to investigate illegal campaign activity in the state, and perhaps elsewhere.
Yeehaw! Welcome to Wisconsin, the wild, wild Midwest of campaigning. More below the orange puff of backroom cigar smoke.
In normal criminal court cases, district attorneys review evidence that's been collected, bring charges if they feel that is warranted and then argue before a court and usually a jury that hears the evidence. In effect, the Wisconsin Supreme Court short-circuited that process. Channeling Alice in Wonderland's Queen of Hearts, only with more vigor, the court's majority said, in so many words: "First the sentence (innocent!), and then the evidence (destroy it!)."
The Journal Sentinel reported that, in dissent, Justice Shirley Abrahamson wrote that the ruling had loosened campaign finance rules and that "the majority opinion's theme is 'Anything Goes.'
"The majority opinion adopts an unprecedented and faulty interpretation of Wisconsin's campaign finance law and of the First Amendment," she wrote. "In doing so, the majority opinion delivers a significant blow to Wisconsin's campaign finance law and to its paramount objectives of 'stimulating vigorous campaigns on a fair and equal basis' and providing for 'a better informed electorate.'"
So, unless someone mounts an appeal at the federal level, Scott Walker, the Wisconsin Club for Growth and other subjects of the inquiry are off the hook legally. And that means the dark-money deluge can continue apace in Wisconsin. The Badger state is suddenly awash in campaign cash; ethics and good government, not so much.
Note, by the way, how "transparency" works when conservatives are in charge of Wisconsin government. Gov. Walker and the Republican legislature previously gutted the state's Open Meetings law, essentially exempting legislators from that bothersome requirement. Then, in the new state budget Walker just signed, that same Wild Bunch tried to gut the state's Open Records laws, an eleventh hour move that failed due to overwhelming public displeasure. If enacted, those changes would have turned Wisconsin government, one of the most transparent and open in the nation, into a political black hole from which sunlight could not escape. Sort of like the inner chambers of the current Wisconsin Supreme Court.
The Wisconsin Republican Party also engineered the transformation of the 2012 recall petitions against Walker into what amounts to a continuing, public database of nearly a million Wisconsin citizens, which the party has proceeded to use as a blacklist.
For instance, Walker pulled back his appointment of a University of Wisconsin student to the Board of Regents on the unconfirmed but clear basis that the student had signed one of the recall petitions. At least one citizen with a ticket to Walker's presidential campaign announcement this week was turned away at the door because staff noted that he, too, had signed a petition. Yup, they carry the blacklist around with them on their laptops.
So, in the case of average Wisconsin citizens, everything is transparent -- very, very transparent. You have to prove and re-prove who you are, and your life history is an open book for many purposes. But if you're a Republican official or a private organization that helps campaign for those officials, the state is all about going into stealth mode.
With the personal assistance of state Supreme Court justices who benefited from the same kind of dark-money deluge in their own elections, campaigns for public office in Wisconsin will now be free to collude with candidates and coordinate their messages.
A prime theory of the Doe prosecutors was that this kind of illegal coordination had happened, in some cases under Walker's personal direction, a theory supported by evidence collected before the court ruled in Walker's favor, evidence now to be destroyed. The court's ruling effectively gives Walker and other subjects of the inquiry a retroactive, get-out-of-jail-free card.
Despite that order, some of the Doe evidence has in the past year or so been made known to the press and public through court proceedings and Open Records requests. It's an ugly, disgusting set of facts, and the recorded public record of those facts cannot be destroyed, much as the court would prefer.
The evidence made public is pretty clear: Millions upon millions of dollars in dark money donations (i.e., donations intended to influence elections that are kept anonymous) benefited the Walker campaign. And, the preliminary evidence showed, the Walker campaign improperly coordinated with the "independent" organizations that controlled and spent those donations.
The "tell" as to how this case would go came last February, when the Doe special prosecutor asked one or more of the state Supreme Court justices to recuse themselves from the case. The assumption was that the prosecutor's request was based on campaign spending by the Wisconsin Club for Growth and Wisconsin Manufacturers & Commerce, both conservative interest groups.
According to Wisconsin Democracy Campaign, an independent not for profit that monitors campaign activity, the Club for Growth spent an estimated $400,000 benefiting Justice Annette Ziegler's campaign in 2007; $507,000 for Gableman in 2008; $520,000 for Justice David Prosser (a former Republican state legislator) in 2011; and $350,000 for Justice Pat Roggensack in 2013.
Wisconsin Manufacturers & Commerce spent an estimated $2.2 million supporting Ziegler; $1.8 million on Gableman; $1.1 million for Prosser; and $500,000 for Roggensack. A third group, Citizens for a Strong America, was funded entirely by Wisconsin Club for Growth spent an estimated $985,000 to help Prosser.
All four justices are conservatives, and none of them chose to sit out the case. The Journal Sentinel: "The justices did not give a reason for why they don't view that spending as a conflict, but court rules say political spending on its own is not enough to force a justice off a case." Guess who made those rules? That same conservative majority on that same court.
In contrast, one liberal justice, Ann Walsh Bradley, did voluntarily recuse herself from the Doe case, not because she got huge dark-money support during her own campaign, but because her attorney son works for a law firm where another lawyer had represented someone else involved in the Doe case. Horrors!
In sum, the putatively conservative but actually radical decision in Wisconsin today arguably represents a greater case of judicial corruption and lack of ethics than you find almost anywhere in the annals of jurisprudence.
But don't you Wisconsin citizens worry one little bit. The Wisconsin Supreme Court has decided that none of this matters in the least. Nothing to see here! Move along! Move along!
Because, according to the state Supreme Court majority, all this election money laundering and heaps of secret donor cash is none of Mr. and Mrs. Public's damn business, or the business of the law. Boss Tweed II and his cronies promptly began rolling up their sleeves in glee.
The Tweed gang had complained bitterly throughout that the Doe probe was a "witch hunt" against Republicans. Never mind that the previous Doe a couple of years ago led to the convictions of several members of Walker's staff when he was Milwaukee County executive, or that evidence collected in that Doe, since closed, led to the creation of the current Doe, now to be erased.
It's curious, too, how an investigation into possible criminal activity could be a witch hunt against Republicans when it's been mounted by a group of district attorneys from both major parties, and when the special prosecutor assigned to oversee the case is himself a Republican. Apparently, right-thinking Republicans believe the dark side of The Force got to all those fellow Republicans who were doing their public duty. In practice, the right-thinkers have ignored the Republicans on the Doe team while attacking the chief Democrat, as though he were doing this all by himself.
So, it would seem that the dark side actually is represented by that larger group of politicians and their patrons, who wish to do whatever they want in their electioneering, without oversight, opposition or interference. They regard themselves without question, above the law and beyond ethics. For the moment, at least.
3:57 PM PT: Reaction late today from John Doe special prosecutor Francis Schmitz:
I am disappointed with today’s ruling from the Wisconsin Supreme Court and respectfully disagree with the conclusions drawn by the majority which end the investigation. The decision represents a loss for all of the citizens of Wisconsin — independents, Democrats and Republicans alike. It defies common sense that a Wisconsin resident of average means who gives $25 to a campaign has his or her name publicly reported under the law but, according to this decision, someone who gives, for example, $100,000 to a group which closely coordinates with the same campaign can remain anonymous. The United States Supreme Court has fittingly characterized such donations as “disguised contributions” to the candidate. As stated in Wisconsin Statute 11.001, “[w]hen the true source of support or extent of support is not fully disclosed, or when a candidate becomes overly dependent upon large private contributors, the democratic process is subjected to a potential corrupting influence.”
Particular justices assert as fact many allegations that I specifically denied in my response materials. There has been no fact-finding hearing conducted at any level establishing, for example, that search warrants were executed unprofessionally or that persons were denied an opportunity to contact their attorneys. All of these search warrants were audio-recorded and it is wrong for the court to accept as true the information alleged by some of the Unnamed Movants and their media outlets.
It is also unfortunate that the citizens of Wisconsin will not have the benefit of a public discussion of the facts and the law because the court decided not to allow oral argument. Consequently, I was denied the opportunity to appropriately respond to the campaign of misinformation about how and why the investigation was conducted.