Commentary: Shutting Down Appeal for John Doe Case is Abuse of Power

By Andrea Kaminski

Regardless of how you feel about the John Doe investigations in Wisconsin, there is reason to be alarmed by the way a majority on our state Supreme Court is handling the case. After issuing a ruling last summer that effectively shut down our campaign finance laws, a majority is now attempting to shut down all avenues of recourse for the plaintiffs in the case. This is an abuse of power and a very dangerous precedent.

The July ruling allows candidates and campaigns to coordinate directly with the kind of issue advocacy groups that run those ads which never say “vote for” or “vote against” but which every voter knows are intended to influence an election. There is no precedent legally to support this application of the First Amendment, and this outlier ruling opens the floodgates for big money in elections.

If this ruling stands, there will be no incentive for candidates to ask wealthy donors to directly support their campaigns, which are subject to contribution limits and disclosure. A candidate can instead direct big donors to contribute to a so-called independent group, which can accept unlimited amounts of money while keeping donors’ names secret. Then the candidate can tell the group where and when to run ads and what content to use.

It’s a win-win arrangement for big money interests and the candidates they support. But it’s a big loss for voters, because money will have more influence in our elections and there will be no way to know who is behind the often misleading ads that dominate the airways.

All of that is bad enough, but even worse are two more recent rulings out of our state’s high court. On Dec. 2 a majority of state Supreme Court justices stripped prosecutor Francis Schmitz of his authority in the John Doe II case, making it impossible for him to appeal the matter to the U.S. Supreme Court. As if that was not enough, the same majority ruled late Friday afternoon that the five county District Attorneys who still might have been able to appeal the case to a higher court had only 14 days in which to start that process.

If these justices are confident of the legal basis for their July ruling, why are they so determined to keep this case from being appealed?

A few years ago the League of Women Voters of Wisconsin spent considerable time and resources in urging the state Supreme Court to adopt appropriate recusal standards for cases in which a party has been a significant financial supporter of a justice’s election. Our proposal was rejected in favor of weak rules written by the very big-money interests that run ads to influence judicial elections.

In the John Doe case four justices refused to withdraw from the case despite significant financial support by some of the groups being investigated. The League’s recusal proposal would have required them to recuse themselves, unless the plaintiffs waived the recusal rule. That would have allayed the accusations of conflict of interest against these justices now.

The League of Women Voters has worked for decades to combat corruption and undue influence in campaign financing. Our democracy depends on a system of campaign financing that is fair and open to all candidates while maintaining a level of integrity that benefits all citizens. This case deserves to be appealed, and our highest court should not be suppressing the legal process.

Andrea Kaminski is executive director of the League of Women Voters of Wisconsin, a nonpartisan organization that advocates for informed and active participation in government. The League welcomes women and men across the state as members. With 18 local Leagues in Wisconsin and 800 affiliates across the county, the League is one of the nation’s most trusted grassroots organizations. Follow @LWV_WI on Twitter.