Cross-posted on The National Law Journal
The Wisconsin Supreme Court last month voted, 4–2, to shut down a state probe investigating whether Gov. Scott Walker’s campaign illegally worked with outside groups that spent millions in support of his 2012 recall campaign. The court’s decision should trouble everyone, regardless of political affiliation, for at least two reasons.
First, the very fact that the court heard the case calls into question the integrity of the Wisconsin judiciary. Several of the justices who voted to stop the inquiry received an astonishing level of campaign support from the groups that were under investigation, with the groups “in most cases spending more than the candidates themselves,” according to the Center for Media and Democracy.
Second, the decision itself eviscerates Wisconsin campaign finance laws, allowing candidates to work closely with, or even control, supportive super PACs and dark-money groups that are subject to no contribution limits and, in the latter case, do not have to disclose their donors.
In both respects, the majority badly misread federal precedent, including Citizens United, which lifted restrictions on independent campaign spending by corporations and unions. But that doesn’t let the U.S. Supreme Court off the hook.
Although it misinterpreted existing case law, the Wisconsin Supreme Court clearly was channeling the Roberts Court’s overarching disdain for campaign finance laws passed by democratic majorities. That disdain now threatens even the integrity of elected judges — exactly what the high court has repeatedly promised its jurisprudence would not do.
The American people deserve better from their judges — all of them.
Since 2010's Citizens United ruling, billions of dollars in new election spending by outside groups have flooded into U.S. elections. Some of these big-spending groups, including ones that supported Walker, hide the names of their donors, thereby preventing even a modicum of accountability for themselves and the politicians they back.
Nevertheless, a few safeguards do remain. Notably, under federal law and the law of most states, outside groups cannot work closely with candidates. If they do, they lose their legal “independence” and are subject to contribution limits. That was the case in Wisconsin until July 16.
Thanks to the majority’s decision, candidates for Wisconsin state office and outside groups can now fully coordinate their spending for political ads, so long as the ads don’t explicitly tell viewers to vote for or against a candidate. In other words, a group can take unlimited secret donations and spend unlimited money in support of a candidate who controls it, as long as the resulting TV spots end with “John Smith: the next Ronald Reagan” instead of “Vote for John Smith.” As you might imagine, this is a distinction without a difference for most voters. It is generally what ad makers do anyway, given the reams of data showing that subtle appeals are more effective than explicit requests for a vote.
The upshot of this decision is that contribution limits in Wisconsin are now laughably easy to evade for moneyed special interests, whose lawyers will ensure that none of their ads run them afoul of the state’s flimsy rules. Small donors and those who want to participate in other ways than by giving money will see their voices further diminished.
Extent of the Ruling
This ruling goes far beyond anything the U.S. Supreme Court has ever said, but that does not mean the high court had nothing to do with this result. In case after case, the Supreme Court has dismissed the people’s interest in preventing corruption and protecting the integrity of our elections and government.
The court’s disdain has set an example for lower courts, some of which now reflexively invalidate well-established and commonsense rules attempting to limit the power of money over our elected officials.
The climate of disrespect for campaign finance rules fostered by the U.S. Supreme Court extends even to the one type of election whose integrity they have promoted: judicial elections.
In a 2009 decision, Caperton v. Massey, the court made clear that no elected judge may preside over a case involving litigants whose election spending in support of that judge creates a “serious risk of actual bias” imperiling the constitutional right to a fair trial. Although some of the pertinent facts have not been made public, there are profound ethical concerns under Caperton regarding the more than $10 million spent by targets of the Wisconsin probe to elect the court majority that then ruled in their favor — as noted in a brief the Brennan Center filed on behalf of six of our nation’s most respected legal ethicists.
Wisconsin prosecutors actually asked at least two of the justices to recuse. They declined to do so. It thus would appear that the climate of impunity the U.S. Supreme Court has fostered in its other campaign finance rulings has bled over to the elected judiciary.
We can only hope that this case marks a nadir for the integrity of Wisconsin’s elections and the integrity of its judiciary. Calls for overhaul of our campaign system and for a fairer judiciary have grown stronger and stronger in recent years. Yet, on both fronts, nine justices in Washington have the final say. They may have done the most to help us arrive where we are today, and they must decide where our country goes from here.