Investigation of Scott Walker’s Fundraising Could End Up at the Supreme Court

A Walker-allied group says it was the target of a political witch hunt, and it wants the high court to intervene.

Wisconsin Governor and exploratory GOP presidential hopeful Scott Walker talks to the media after speaking at the Freedom Summit on May 9, 2015 in Greenville, South Carolina.
National Journal
Sam Baker
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Sam Baker
May 12, 2015, 4:01 p.m.

A con­tro­ver­sial in­vest­ig­a­tion in­to Scott Walk­er’s fun­drais­ing could land at the Su­preme Court—just in time for the Re­pub­lic­an pres­id­en­tial primar­ies.

The justices are sched­uled to dis­cuss Thursday wheth­er they should hear a law­suit that in­volves the long, polit­ic­ally charged in­vest­ig­a­tion in­to Walk­er’s co­ordin­a­tion with out­side groups dur­ing his re­call cam­paigns.

One of Walk­er’s closest al­lies in the re­call fight—the Wis­con­sin Club for Growth—is ask­ing the high court to take the case. The group says it was un­fairly tar­geted by an “in­trus­ive, har­ass­ing, and dam­aging crim­in­al in­vest­ig­a­tion in re­tali­ation for [its] First Amend­ment-pro­tec­ted ad­vocacy.”

The high court has already wrapped up or­al ar­gu­ment for its cur­rent term. So if it does de­cide to take the Club’s case, ar­gu­ments and a de­cision would come some­time in the next term, which be­gins in Oc­to­ber.

“If the Su­preme Court takes it, I think it would prob­ably take it be­cause of the pack­aging of the case as pro­sec­utors on a polit­ic­al witch hunt tar­get­ing con­ser­vat­ives,” said Rick Hasen, a law pro­fess­or at the Uni­versity of Cali­for­nia, Irvine, and the au­thor of the Elec­tion Law Blog.

The law­suit stems from an in­vest­ig­a­tion in­to wheth­er Walk­er’s cam­paign il­leg­ally co­ordin­ated with in­de­pend­ent polit­ic­al groups, in­clud­ing the Wis­con­sin Club for Growth, as he fought re­call cam­paigns in 2011 and 2012. The re­call ef­forts were spurred by Walk­er’s ag­gress­ive moves to strip pub­lic-sec­tor uni­ons of their bar­gain­ing power—a cam­paign the state’s Club for Growth strongly sup­por­ted.

Pro­sec­utors in Mil­wau­kee County opened a secret in­vest­ig­a­tion in 2012 in­to pos­sible co­ordin­a­tion between Walk­er’s cam­paign and out­side groups sup­port­ing him. The probe ex­pan­ded to ad­di­tion­al counties in 2013.

Pro­sec­utors say the in­vest­ig­a­tion was simply an in­quiry in­to po­ten­tial vi­ol­a­tions of state cam­paign-fin­ance law. Doc­u­ments from the in­vest­ig­a­tion re­portedly showed Walk­er’s cam­paign aides en­cour­aging sup­port­ers to donate to the Wis­con­sin Club for Growth dur­ing the re­call cam­paign, say­ing the gov­ernor “wants all the is­sue ad­vocacy ef­forts run thru one group to en­sure cor­rect mes­saging.”

Wis­con­sin Club for Growth, however, de­scribes the in­quiry as a par­tis­an cru­sade to in­tim­id­ate Walk­er’s al­lies and scare oth­ers away from donat­ing to or work­ing with them.

“De­prived of funds, cut off from its vendors and al­lies, and un­sure even of what law it was al­leged to have vi­ol­ated, the Club was para­lyzed, as were all oth­er ma­jor con­ser­vat­ive ad­vocacy groups in Wis­con­sin,” it said in its brief ur­ging the Su­preme Court to take the case.

Hasen says those claims ap­pear over­stated, and that the case’s polit­ic­al weight is great­er than its abil­ity to weak­en laws against cam­paign co­ordin­a­tion. “I see this case as hav­ing a lot of rhet­or­ic­al and sym­bol­ic value, but I don’t see it as, one way or the oth­er, mak­ing ma­jor changes in cam­paign-fin­ance law,” he said.

Neither Walk­er nor his cam­paign are parties in the law­suit, and an at­tor­ney for the pro­sec­utors has said Walk­er him­self was not a tar­get of the in­vest­ig­a­tion.

Wis­con­sin Club for Growth is chal­len­ging the in­vest­ig­a­tion in both state and fed­er­al courts. The state Su­preme Court is ex­pec­ted to rule this sum­mer on wheth­er the probe was on the up-and-up, and a fed­er­al ap­peals court said last year that the fed­er­al ju­di­ciary should stay out of the mat­ter un­til then.

“Prin­ciples of equity, comity, and fed­er­al­ism coun­sel against a fed­er­al role here,” a three-judge pan­el of the 7th U.S. Cir­cuit Court of Ap­peals said.

The pro­sec­utors who began the in­vest­ig­a­tion also want the U.S. Su­preme Court to hold off.

“Wheth­er the “¦ pro­ceed­ings are val­id un­der Wis­con­sin law is a ques­tion unique to Wis­con­sin and it is through Wis­con­sin state courts that the ques­tion should first be re­solved,” they said in their brief ur­ging the court to leave the 7th Cir­cuit’s rul­ing alone.

And there’s cer­tainly a chance the Su­preme Court will de­cide to stay out of the is­sue—or to wait and see what comes out of the state Su­preme Court. The justices were ini­tially slated to dis­cuss the case in early April, but have post­poned their de­lib­er­a­tions twice. And there’s no way to know what those delays mean, Hasen said.

“I think there is a pos­sib­il­ity that the Court takes it, though it could be that what the Wis­con­sin Su­preme Court de­cides to do moots things,” he said.

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