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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.

Back­ground

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)