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Chisholm v. Two Unnamed Petitioners (Amicus Brief)

The Brennan Center filed an amicus brief with the U.S. Supreme Court arguing the court should grant the petition for certiorari.

Published: July 8, 2016

On June 22, the Brennan Center for Justice, together with the Center for Media and Democracy and Common Cause Wisconsin, submitted an amicus brief requesting that the U.S. Supreme Court grant certiorari in Chisholm v. Two Unnamed Petitioners. The Brennan Center and co-counsel filed the brief in support of the petitioners, several Wisconsin prosecutors, who are asking the Supreme Court to evaluate and eventually reverse the Wisconsin Supreme Court’s damaging decision ending an investigation that sought to determine whether several political nonprofits illegally coordinated their activities with Governor Scott Walker’s campaign team.

In the brief, the Brennan Center argues the Court should grant certiorari in order to address two important implications of the Wisconsin Supreme Court’s ruling. First, the Court should confirm that precedent allows regulation of coordinated campaign expenditures to ensure that states may prevent corruption through campaign contribution limits. Second, the Court should clarify that the refusal of two Wisconsin Supreme Court justices to recuse themselves deprived the petitioners a fair trial, and damaged public confidence in the courts by demeaning the reputation and integrity of the Wisconsin Supreme Court.

The Supreme Court has accepted a petition for case filings in Chisholm to be made under seal. As a result, case documents released to the public are redacted in parts.


In 2012, Milwaukee County DA John Chisholm began an investigation into possible illegal campaign coordination between Governor Scott Walker’s 2012 recall election campaign and special interest groups. According to news reports, those groups included the Wisconsin Club for Growth, Citizens for a Strong America, and Wisconsin Manufacturers and Commerce.

On January 10, 2014, Judge Gregory Peterson of the Wisconsin Court of Appeals granted the groups’ motion to quash the subpoenas used in the investigation. Several parties appealed Peterson’s decision.

In O’Keefe v. Chisholm, plaintiff Eric O’Keefe of the Wisconsin Club for Growth, a 501(c)(4) organization, filed suit in a federal district court seeking to end the investigation. The district court granted the plaintiffs’ motion for a preliminary injunction. In his ruling, Judge Randa held that in the case of coordinated spending, only “express advocacy” – speech that expressly advocates for the election or defeat of a clearly identified candidate – is subject to limitation. The Brennan Center and pro bono counsel filed an amicus brief in the U.S. Court of Appeals for the Seventh Circuit arguing the lower court’s ruling goes against 40 years of Supreme Court precedent, and urging the Court to overturn it. The Seventh Circuit reversed the district court and dismissed the suit.

In Two Unnamed Petitioners v. Peterson (consolidated by the Wisconsin Supreme Court with Three Unnamed Petitioners v. Peterson and Schmitz v. Peterson), two of the parties targeted by the investigation appealed to end the investigation on the basis that the statute it was based on was unconstitutional. The parties claimed their speech was not “express advocacy” and therefore not subject to coordination regulations.

This required the justices to hear a challenge to the law that prohibits coordination between political candidates and groups that make independent expenditures in support of their election campaigns. These special interest groups reputed to be targets of the investigation also spent millions in support of four of the state’s Supreme Court justices during previous election campaigns.

In February 2015, the prosecutor leading the probe into possible coordination between Governor Scott Walker’s campaign and outside groups filed a motion asking at least one Wisconsin Supreme Court justice, and possibly more, to recuse themselves from hearing a challenge to the investigation based on the spending they benefitted from during their elections. However, in 2010, Wisconsin Supreme Court had changed the state’s recusal rules to exclude campaign contributions and independent expenditures as sole bases for judicial recusal. These changes were drafted in part by Wisconsin Manufacturers and Commerce.

The Brennan Center filed an amicus brief on behalf of legal ethicists arguing that the Wisconsin Supreme Court must instead consider the recusal motion in a manner consistent with the U.S. Supreme Court’s decision in Caperton v. Massey, which established that due process may require recusal under some circumstances when a litigant provided significant campaign support to a judge.

On July 16, 2015, Justices Prosser and Gableman denied motions for recusal. On July 29, Justice Prosser issued a letter to counsel explaining his decision to deny recusal. The Wisconsin Supreme Court also held that the John Doe investigation must be halted.

Chisholm v. Two Unnamed Petitioners (U.S. Supreme Court)

O’Keefe v. Chisholm (Seventh Circuit)

Three Unnamed Petitioners v. Peterson (Wisconsin Supreme Court)