Wisconsin Supreme Court Ignores Conflicts of Interest & All Relevant Precedent to Strike Down State Restrictions on Coordinated Spending and End Scott Walker John Doe Investigation


Today, in three consolidated cases arising from the ongoing Wisconsin John Doe investigation, the Wisconsin Supreme Court ignored U.S. Supreme Court precedent—and Wisconsin state precedent— to significantly narrow Wisconsin’s restrictions on the coordination of expenditures between candidates and outside groups.  The controversial decision was handed down by a narrow court majority that includes two judges whose own elections were bankrolled by millions spent by the same dark money groups under investigation in the John Doe probe.  Prosecutors had called for their recusal.

The Campaign Legal Center, joined by Democracy 21, Common Cause in Wisconsin and the League of Women Voters of Wisconsin, filed an amici brief in the case urging the court to uphold the coordination restrictions.

The court agreed with the petitioners’ argument that if coordinated expenditures do not expressly advocate the election or defeat of candidates, then they cannot be subject to regulation or limitation.  The U.S. Supreme Court specifically rejected that argument in McConnell v. FEC, holding that “there is no reason why Congress may not treat coordinated disbursements for electioneering communications,” i.e., a form of non-express advocacy, “in the same way it treats all other coordinated expenditures.”

“This ruling is an outrageous act of judicial activism that outright ignores clear Supreme Court precedent recognizing that expenditures coordinated by outside groups with candidates are little more than ‘disguised contributions’ made to the candidates themselves, regardless of whether or not the audience is expressly instructed to vote for or against a candidate,” said Tara Malloy, Campaign Legal Center Senior Counsel.  “In fact, the majority does not cite a single Supreme Court precedent pertaining to ‘coordinated expenditures,’ an extraordinary omission in a case that purports to review the constitutionality of Wisconsin’s laws in this area.”

Ms. Malloy continued: “At least two of the justices in the majority should have recused themselves from the case because the groups under investigation played major roles in electing those justices to the court.  The U.S. Supreme Court has not looked kindly on such blatant conflicts of interest, holding as recently as 2009 that the due process concerns required that a judge recuse himself from a case involving an individual who had spent millions of dollars to aid his election.  Today, two of the Wisconsin justices named in the Special Prosecutor’s recusal motion declined to recuse themselves without offering any rationale to justify the plain conflict of interest.”

The consolidated case centered around a challenge to a so-called John Doe investigation of alleged illegal coordination between the campaign of Wisconsin Governor Scott Walker and outside groups.  That investigation was blocked until various challenges were resolved.

To read the opinion, click here.

To read the amici brief filed by the Campaign Legal Center, Common Cause in Wisconsin, Democracy 21 and the League of Women Voters of Wisconsin, click here.