But the ruling seems unlikely to end the political controversy spurred by the probe, which had become a lightning rod in the broader debate over the role of so-called dark money in American politics. Critics immediately noted that two of the justices on the court who ruled in Walker’s favor had been elected with $10 million in contributions from outside advocacy groups, which don’t disclose their donors and which were the very subjects of the Walker investigation.
And the prospect that voluminous records, including emails and memos written by Walker and his top campaign aides, will now be destroyed could well become an issue for transparency advocates.
But looking ahead, the story isn’t quite finished. The next question is focused less on Walker and more on the judges who just did Walker a favor. Political scientist Norman Ornstein yesterday described the Wisconsin Supreme Court as the “worst court in America,” and it’s worth appreciating why.
Yahoo News’ Michael Isikoff reported yesterday, for example, about the conflict-of-interest allegations swirling around the case. “Critics immediately noted that two of the justices on the court who ruled in Walker’s favor had been elected with $10 million in contributions from outside advocacy groups, which don’t disclose their donors and which were the very subjects of the Walker investigation,” Isikoff explained.
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.
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.
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.
Francis Schmitz, the special prosecutor leading the investigation, in February asked that Gableman and Justice David Prosser step aside in the case because the groups being investigated had spent millions of dollars to help elect them.
The two justices issued terse opinions Thursday saying they would not do so, but they did not explain their rationale. Court rules say political spending on its own is not enough to force a justice off a case.
The litigation has been shrouded in an unusual amount of secrecy. Large sections of filings by prosecutors and the groups have been blacked out because the underlying investigation was conducted under the state’s John Doe law, which allows prosecutors to operate in secret. The justices didn’t hold oral arguments to avoid disclosing private information.
Weiner’s center filed a brief in the case supporting a February motion by the special prosecutor asking that Gableman and Prosser drop out of the cases because of spending by groups involved in the probe.
The Wisconsin Club for Growth is estimated to have spent $507,000 for Gableman and $520,000 for Prosser. Wisconsin Manufacturers & Commerce spent an estimated $1.8 million for Gableman and $1.1 million for Prosser.
In addition, Citizens for a Strong America — a group funded entirely by the Wisconsin Club for Growth — spent an estimated $985,000 to help Prosser.
Court documents show that Mr. Schmitz had asked at least one justice to step aside from the case because of potential conflicts; legal experts say they suspect that the court’s four conservatives were asked to step aside because some of the conservative groups that were under investigation spent money that critics say was aimed at supporting the justices’ elections in previous years.
All four conservative justices refused to step aside and concurred with the majority finding, which was written by Justice Michael Gablemen. One liberal justice recused herself because of unrelated ties to the case, while two others, including Justice Abrahamson, dissented with portions of the majority ruling.