Wisconsin Supreme Court shuts down multi-county probe of Scott Walker dark-money coordination

Arguably an overreach, this ruling came as no surprise to legal and political observers, given that the Wisconsin Supreme Court majority consists of conservatives who benefited from the same kind of dark-money campaigning from the same or same kind of supposedly independent groups with which the Scott Walker campaign allegedly coordinated. That seems contrary to a plain reading of the state's campaign finance law. Nevertheless, via the Milwaukee Journal Sentinel, here's the crux of the court's trenchant, 4-2 decision today: "To be clear, this conclusion ends the John Doe investigation because the special prosecutor's legal theory is unsupported in either reason or law," [Justice Michael] Gableman wrote. "Consequently, the investigation is closed. Consistent with our decision and the order entered by Reserve Judge (Gregory) Peterson, we order that the special prosecutor and the district attorneys involved in this investigation must cease all activities related to the investigation, return all property seized in the investigation from any individual or organization, and permanently destroy all copies of information and other materials obtained through the investigation." This ruling is, in its own way, similar to the way the U.S. Supreme Court majority summarily shut down the Florida recounts in 2000 and awarded the presidency to Republican candidate George W. Bush by fiat. In that case, the court said continuing the recount, which was trending toward Al Gore, could cause harm to Bush. Ya think? A similar kind and quality of legal reasoning was applied today in Wisconsin.

The plaintiffs in the Wisconsin case apparently argued that the investigation violated their right to freely associate under the First Amendment. In other words, they characterized their coordination with candidates as a free-speech issue. The plaintiffs were, however, also upset that their names had been dragged through the mud. That was ironic, given that one of the eventual plaintiffs outed himself via an op ed column in the Wall Street Journal.

It was further ironic that the Wisconsin Supreme Court took the unusual step of not listening to oral arguments in public session, instead deciding the entire case behind closed doors. Message: Closed doors are good, except when we say they're bad. But if law enforcement agencies are banned from investigating certain suspected crimes --  on the basis that a court could study the law and simply rule the investigation itself out of order before charges could be filed and the case assigned to another court -- how do prosecutors and police ever decide to press charges or seek justice? This ruling completely short-circuits the judicial process. It may even serve as an inducement to break the law and then seek retroactive salvation.

This decision involved a secret "John Doe" investigation by districts attorneys in several Wisconsin counties. The "Doe" process is similar to grand jury proceedings in other states, but is overseen by a judge without a panel of citizen jurors. Depending on results of the investigation, district attorneys can choose to issue formal criminal charges which are heard in open court and in front of a jury.

What's next? The state's high court tossing out a grand-jury-style inquiry into organized crime, on the basis that those criminal suspects likewise have a right to freely associate without pesky investigations by the criminal justice system? Never mind their possible day in court on resulting charges; they have a right not to be regarded as suspects in the first place. Deal-making is talk, talk is protected speech!

The Doe proceeding has been used effectively in Wisconsin for many years in political and conventional criminal cases, including about 15 years ago, when an earlier case of political corruption led to convictions of several Wisconsin state legislators from both parties and the end of a political caucus system operating within the halls of the state Capitol. In today's political environment, that case may have ended with no charges and no limits on political activity within the halls of government.

The state Supreme Court majority basically did everything the plaintiffs asked, ending the stalled Doe inquiry in mid-flight, after the ruling conservative majority (who make the similar majority on the U.S. Supreme Court look reasoned, neutral and scholarly) summarily and pre-emptively re-interpreted the state's campaign finance laws. No charges or convictions required to reverse a possible court conviction. For dessert, the Wisconsin Supreme Court majority ordered destruction of all evidence collected by the Doe investigators to date. Which arguably is going to put quite the damper on any future attempts to investigate illegal campaign activity in the state, and perhaps elsewhere.

Yeehaw! Welcome to Wisconsin, the wild, wild Midwest of campaigning. More below the orange puff of backroom cigar smoke.