Court Concludes Scott Walker's Campaign Didn't Violate Laws
By Patrick Marley and Mary Spicuzza
Dealing Wisconsin Gov. Scott Walker a victory just as his presidential campaign gets underway, the Wisconsin Supreme Court in a sweeping decision Thursday ruled the governor's campaign and conservative groups had not violated campaign finance laws.
The ruling means the end of the investigation, which has been stalled for 18 months after a lower court judge determined no laws were violated even if Walker's campaign and the groups had worked together as prosecutors believe.
It could also reshape how campaigns are run in Wisconsin because it makes clear campaigns can work closely with outside groups, allowing more political money to flow without the names of donors being disclosed.
Also, the decision builds momentum for rewriting campaign finance laws, overhauling the state's elections and ethics agency, and limiting the ability of prosecutors to conduct John Doe probes. Republicans who control the Legislature have argued such investigations should not be conducted in political cases and targets of probes shouldn't be barred from speaking out publicly.
The ruling dealt with three pieces of litigation, and the justices split 4-2 on the campaign finance laws that were at the center of the probe.
Writing for the majority, Justice Michael Gableman found collaboration between issue groups and campaigns was not illegal. He ordered prosecutors to return all records they seized and destroy any copies they made of them.
"It is utterly clear that the special prosecutor has employed theories of law that do not exist in order to investigate citizens who were wholly innocent of any wrongdoing," Gableman wrote.
Calling the challengers brave, Gableman wrote that their litigation gave the court "an opportunity to re-endorse its commitment to upholding the fundamental right of each and every citizen to engage in lawful political activity and to do so free from the fear of the tyrannical retribution of arbitrary or capricious governmental prosecution. Let one point be clear: our conclusion today ends this unconstitutional John Doe investigation."
In dissent, Justice Shirley Abrahamson wrote that the majority had so loosened campaign finance rules that its theme song should be "Anything Goes."
"The majority opinion adopts an unprecedented and faulty interpretation of Wisconsin's campaign finance law and of the First Amendment," she wrote.
As the Republican governor campaigned in New Hampshire, Walker told reporters he'd remained even keeled throughout the long-running investigation and court fights.
"So we're pleased; it's just one more thing that allows us to take a step moving forward," Walker said, according to The Washington Post.
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.
Schmitz said he was reviewing whether to appeal the ruling to the U.S. Supreme Court. He could ask the Supreme Court to review Gableman and Prosser's decisions to stay on the case or how the majority interpreted the First Amendment right to free speech.
"The decision represents a loss for all of the citizens of Wisconsin _ independents, Democrats and Republicans alike," Schmitz said in a statement. "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 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.
John Doe probes allow prosecutors to force people to produce documents and give testimony and bar them from speaking with anyone but their attorneys. They are conducted before a judge.
Key details about the probe have emerged in news reports, opinion pieces and a wave of litigation against investigators.
For instance, court documents suggested Walker had helped raise money for the Wisconsin Club for Growth. They also revealed that group had roped in $700,000 from Gogebic Taconite, the mining company that helped write a 2013 law that loosened environmental regulations aimed at helping it establish an iron ore mine in northern Wisconsin. Gogebic abandoned the project this year.
Milwaukee County District Attorney John Chisholm in August 2012 opened the investigation into Walker's campaign. He was assisted by Schmitz, four district attorneys from both parties and the Government Accountability Board, which oversees the state's campaign finance laws. Chisholm is a Democrat and Schmitz is a Republican.
Walker and other Republicans have insisted the probe is a political witch hunt -- claims prosecutors deny.
Those in the majority raised questions about the way the probe was conducted, with Gableman writing that the search warrants were executed as "pre-dawn, armed, paramilitary-style raids" and Prosser writing in a concurrence that the subpoenas were "so extensive that they make the fruits of the legendary Watergate break-in look insignificant by comparison."
In all, 29 organizations and individuals received subpoenas seeking millions of documents. Some of the material seized included family photos and other "irrelevant information," Gableman wrote.
Court records have shown those fighting the subpoenas included Walker's campaign and the state's largest business group, Wisconsin Manufacturers & Commerce.
Schmitz denied the search warrants were executed unprofessionally and said the majority had accepted the targets' claims as fact without anyone holding a hearing on the matter.
Prosecutors believed Walker's campaign and the Wisconsin Club for Growth worked together in 2011, when state senators faced recalls over a GOP plan to restrict collective bargaining for public workers. Walker faced a recall the following year and became the first governor in U.S. history to survive one.
Investigators turned up evidence that Walker helped raise funds for the Wisconsin Club for Growth and that his campaign worked with the group on strategy. R.J. Johnson simultaneously served as an adviser to the club and Walker's campaign.
Reserve Judge Gregory Peterson, who oversaw the investigation, agreed with the groups in January 2014 that the activities in question were not illegal. He quashed subpoenas that had been issued to the groups and his ruling effectively halted the investigation.
Schmitz asked an appeals court to overturn that ruling. Meanwhile, the Wisconsin Club for Growth, Johnson and another club adviser, Deb Jordahl, filed a lawsuit challenging the probe on technical grounds. Johnson and Jordahl -- whose homes were raided in October 2013 _ also filed suit directly with the high court asking it to uphold Peterson's ruling.
The suits involving the club, Johnson and Jordahl were filed anonymously, but The Milwaukee Journal Sentinel reported on their involvement in the cases last year.
The appeals court ruled in favor of prosecutors in the challenge that dealt with technical issues about how the probe was conducted. The state Supreme Court agreed last year to take that case, as well as the other two without input from the appeals court.
On Thursday, the majority found collaboration between campaigns and issue groups is allowed because such groups don't explicitly tell people how to vote.
Issue groups have broader free speech rights than those that run ads expressly urging people to vote for or against candidates. To the average voter, the two types of ads appear similar because they praise or denigrate candidates, but only one type uses phrases such as "vote for" or "vote against."
The majority consisted of the court's four conservatives -- Gableman, Prosser, Chief Justice Patience Roggensack and Justice Annette Ziegler.
In dissent on the campaign finance issue were Abrahamson, a liberal, and Justice N. Patrick Crooks, a swing vote. Liberal Justice Ann Walsh Bradley did not participate in the cases because her son practices law with Jordahl's attorney.
Todd Graves, an attorney for the club and its director, Eric O'Keefe, said in a statement Chisholm and the accountability board until now "acted like playground bullies without fear of restraint from the courts."
O'Keefe and the club have challenged the probe on other legal fronts. A federal lawsuit they brought alleging their civil rights were violated was thrown out last year and a separate lawsuit over the probe is pending in Waukesha County Circuit Court.
In an interview, Graves said more litigation was possible. Asked if the group would seek damages from prosecutors, Graves said it is more interested in making sure facts about how prosecutors operated are disclosed.
"Sometimes embarrassment is more important than money," he said.
Turning the tables on regulators, GOP Assembly Speaker Robin Vos asked Attorney General Brad Schimel on Thursday to investigate the accountability board. Schimel, a Republican, did not say whether he would do that, but earlier in the day he had said the ruling "closes a divisive chapter in Wisconsin history."
Reid Magney, a spokesman for the accountability board, declined to comment on the request from Vos. In a statement, the board's chairman, Gerald Nichol, said the ruling reverses how election officials have interpreted campaign finance laws for four decades.
Daniel Weiner, senior counsel at the Brennan Center for Justice at New York University, said in a statement the court "has made campaign finance law extraordinarily easy to evade. No other court has gone this far and for good reason -- it is a misreading of the law and threatens fair and transparent elections."
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.
(Journal Sentinel reporter Jason Stein contributed to this report.)
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