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This online commercial paid for by Wisconsin Manufacturers and Commerce is part of the estimated $1.1 million the group spent to benefit Wisconsin Supreme Court Justice David Prosser's 2011 re-election campaign. WMC is among the groups challenging the legality of the "John Doe" investigation before the court. 

Should the four-member conservative majority on the Wisconsin Supreme Court decide a case involving groups that spent more than $8 million to get them elected?

That is one question under debate as the high court considers whether to wade into the stalled “John Doe” investigation. A federal court rejected a challenge to the investigation by one of those groups, Wisconsin Club for Growth, late last month, sending it back to the state courts to decide.

Three groups that have fought in court to end the John Doe probe — Club for Growth, Citizens for a Strong America and Wisconsin Manufacturers and Commerce — also have spent millions to support the candidacies of Justices David Prosser, Pat Roggensack, Annette Ziegler and Michael Gableman over the past seven years.

In addition, WMC wrote the controversial recusal rules under which the justices and other Wisconsin judges decide whether to sit on a case. Those rules, adopted by a bitterly divided court on a 4-3 vote, state that judges cannot be forced off cases based solely on their acceptance of legal campaign contributions or independent efforts done on their behalf.

Emails sent to the four justices seeking comment about possible recusal were not returned.

The rules passed by the conservative majority in 2010, however, offer a potential justification for staying on the case. Roggensack, writing for the majority, said requiring automatic disqualification “would permit the sponsor of an independent communication to dictate a judge’s non-participation in a case, by sponsoring an independent communication.” Such disqualification, she wrote, “would disrupt the judge’s official duties and also have a chilling effect on protected speech.”

Scot Ross, head of the liberal advocacy group One Wisconsin Now, said the four-year-old rules are a “get-out-of-court-free card” for powerful interests that spend heavily in Supreme Court races. His group has called on the four justices to recuse themselves from any John Doe case.

“There’s an $8 million weight on the scales of justice spent to elect these justices,” Ross said. “The vast majority of spending to elect these four justices was done by these entities.”

The John Doe investigation centers on coordination between Gov. Scott Walker’s campaign and conservative and Republican groups during the 2011 and 2012 recall elections. The three groups and Friends of Scott Walker have argued that coordination cannot be regulated so long as it involves so-called “issue advocacy” that does not expressly advocate the election or defeat of any candidate. That question remains up in the air, as judges hearing the various John Doe appeals have come down on both sides of the issue.

In January, the John Doe judge, Gregory Peterson, quashed prosecutors’ subpoenas seeking records from those groups and the Walker campaign, saying he is not convinced state law specifically prohibits such coordination. The investigation has been halted since then. Three sets of plaintiffs, including Walker’s campaign, have asked the high court to decide the legality of the investigation.

Big money in court races

Prosser’s 2011 campaign is an illustration of the powerful role that such groups play in modern Wisconsin Supreme Court races. Prosser won his 2011 re-election bid by a slim 7,000 votes, and outside groups spent $3 of every $4 expended on Prosser’s behalf.

Wisconsin Manufacturers and Commerce spent $1.1 million, Wisconsin Club for Growth spent $520,000, and Citizens for a Strong America, an arm of Club for Growth, spent $985,000 on advertising and other efforts to support Prosser or attack his opponent, JoAnne Kloppenburg, according to Wisconsin Democracy Campaign estimates. Kloppenburg also was the beneficiary of outside spending; the Greater Wisconsin Committee spent $1.6 million on anti-Prosser ads.

Bert Brandenburg, executive director of the advocacy group Justice at Stake that opposes judicial elections, said the overwhelming majority of the public believes judges are compromised when they sit on cases involving large campaign supporters. He cited a 2013 national poll done for his organization that showed 92 percent of 1,200 registered voters said judges should step aside if one or more parties had spent a “significant amount to support the election of the judge.”

“No matter how it’s resolved, these kinds of episodes are going to happen over and over again as more money piles up around state judicial elections,” Brandenburg said.

In 2010, Brandenburg’s group had pushed unsuccessfully for Wisconsin’s justices to adopt stricter recusal rules when it comes to campaign supporters. He said such rules provide “insulation” between the money that helps judges get elected and the decisions they make on the bench.

“They (judges) are supposed to treat every case equally,” Brandenburg said. “Campaign money is about pressure — that’s what it’s designed to do. We can’t ask our judges to do their jobs without pressure (because) that insulation is wearing away.”

The court ultimately adopted the new rules, which were sought by WMC and the Wisconsin Realtors Association, after Ziegler was publicly criticized for presiding over a case pushed by WMC. That group had spent an estimated $2.2 million in an independent effort to elect her.

In her dissent, Justice Ann Walsh Bradley accused the majority of selling out to special interests. Roggensack wrote that Bradley’s “politically correct” position would disenfranchise the voters who put judges in office.

Case sets standard

But the U.S. Supreme Court reached a different conclusion in 2009 in the case of a coal mine owner, Don Blankenship, who launched a $3 million campaign to elect a new justice to the five-member West Virginia Supreme Court.

That court was set to hear the appeal of a $50 million judgment to rival coal company owner Hugh Caperton against Blankenship’s company, Massey Energy.

Sixty percent of the spending in the race that elevated Brent Benjamin to the high court came from Blankenship. When Blankenship’s appeal reached the West Virginia high court, Benjamin three times refused to step down from the case.

The other side sued, and the U.S. Supreme Court, in a 5-4 decision, ruled it was unconstitutional for a judge to hear a case involving the financial interests of such a major campaign supporter.

Bradley already has stepped down from one of the John Doe cases, saying her son works for the law firm representing one of the unnamed plaintiffs. She suggested in a March letter announcing her recusal that her colleagues should consider whether they, too, should decline to participate.

If all four were to do so, the seven-member court would be unable to muster a majority required to rule on the John Doe challenges. Randall Crocker, the attorney for John Doe prosecutor Francis Schmitz, declined comment on whether his side will call for any of the justices to step down from the cases.

In her recusal, Bradley cited the Caperton ruling, which held that judges should decide whether to step down by considering “the contribution’s relative size in comparison to the total amount of money contributed to the campaign, the total amount spent in the election, and the apparent effect such contribution had on the outcome of the election.”

Bradley wrote: “This court has been subject to extensive criticism for its recusal rules and practices ... (which) undermine the public trust and confidence in a fair and impartial judiciary.”

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