- On Thursday morning, the Wisconsin Supreme Court ended a years-long investigation by a special prosecutor into Gov. Scott Walker. The court found that the alleged coordination between Walker's campaign and various outside groups supporting him and other allied candidates during 2011 and 2012 recall elections would in fact have been perfectly legal.
- The court ruled that candidates and independent outside groups are permitted to coordinate over "issue advocacy" ads that may attack candidates for office, but that don't expressly advocate a vote for or against them. Coordination is only a crime when it involves stronger "express advocacy" ads, the justices wrote. They ruled that a seemingly stricter provision of state law was "unconstitutionally overbroad and vague," and limited it.
- Since the special prosecutor was only investigating issue advocacy coordination, and since those activities are legal in the court's eyes, the investigation was thrown out.
- Additionally, the court's majority had very harsh words for the special prosecutor, writing that his "legal theory is unsupported in either reason or law," and that he used it to investigate "citizens who were wholly innocent of any wrongdoing."
- The bitterly divided court's ruling was 4-2, with the four justices generally seen as conservative voting in the majority, two liberals dissenting, and another liberal recusing herself.
- Liberal groups harshly criticized the decision, arguing that two of the conservative justices won recent elections with the help of ads from the outside groups in question.
The ruling finds that coordination between campaigns and groups on ads like this is legal
In 2011, Democratic Wisconsin Rep. Sandy Pasch challenged a Republican state senator who was being recalled, and an outside state group ran this ad against her. It will look, to many, quite like a campaign ad. "Pasch voted to cut college tuition benefits for Wisconsin veterans, at the same time voting to give tuition breaks to illegal aliens," it says. It seems designed to trash her reputation right before the election.
But actually, the ad never mentions anything about an election at all. In its final line, the ad urges viewers only to call Sandy Pasch. Because it lacks magic words like "vote," it's viewed only as an "issue advocacy" ad under federal election laws.
The Wisconsin Club for Growth, which ran this ad and others like it and funded other groups running similar ads, was at the center of the prosecutors' investigation into Walker's team. The prosecutors argued that coordination between Walker advisers and supposedly independent outside groups over ads like this was illegal.
And they found lots of evidence of coordination. Walker's top political adviser, R. J. Johnson, had advised the club to steer millions of dollars to other conservative nonprofits and helped craft the club's communications and advertising strategy. Furthermore, prosecutors said that Johnson once stated "We own CFG," and that his business partner Deborah Jordahl was a signatory to the group's bank account. Since Johnson was being paid by Walker's campaign at the time, prosecutors argued that this was illegal coordination between a paid campaign "agent" and an avowedly independent outside group.
Furthermore, prosecutors argued in one document that Walker, too, was involved in what they called a "criminal scheme." Emails revealed that Walker was directly raising money for the Wisconsin Club for Growth, and wanted coordination between it and other outside groups. Walker consultant Kate Doner wrote to Johnson in one email, "As the Governor discussed... he wants all the issue advocacy efforts run thru one group to ensure correct messaging."
Yet the ads run by the Wisconsin Club for Growth and the groups it funded were only about "issue advocacy." So because of that, there was an argument all along that nothing illegal happened at all, as I explained last year. In Thursday's ruling, the state Supreme Court sided with that argument.
Prosecutors had argued that a provision of Wisconsin law was more restrictive of issue ads than federal law is. But the court ruled that that provision defining "political purposes" very broadly was "unconstitutionally overbroad and vague," didn't fit with US Supreme Court rulings, and chilled free speech. It ruled that the provision should be limited to "express advocacy," and should not apply to issue ads.
As a result, candidates and outside groups in Wisconsin now have an open door to coordinate on ad campaigns — so long as those ads stay at least technically limited to issues, rather than elections or votes.
Liberal groups like the Center for Media and Democracy called the fairness of the ruling into question, pointing out that two of the justices in the majority in fact won recent court elections with the help of huge sums spent by the Wisconsin Club for Growth. "The dark money groups that bankrolled the Walker team's recall victories got the decision they wanted from the justices they swept into office with their spending," CMD director Lisa Graves said in a statement.