It is possible to document the close ties between the national network of major conservative donors backing Walker and the conservative lobbying groups that turned the Wisconsin Supreme Court into a political tool. PHOTOGRAPH BY DANIEL ACKER / BLOOMBERG VIA GETTY

When Scott Walker announced last week that he is running for President, he pledged to pursue a conservative agenda that will transfer power back to the states. “We need new, fresh leadership, leadership with big, bold ideas from outside of Washington,” Walker said. “The kind of leadership that knows how to get things done, like we’ve done here in Wisconsin.” A few days later, the conservative-dominated Wisconsin Supreme Court issued a decision that shows an important part of how he and his political allies have gotten things done. They have substituted the misrule of politics for the rule of law.

By 4–2, with the four conservatives in the majority, a liberal and a moderate in dissent, and one justice recused, the court halted the John Doe criminal investigation into whether Walker’s successful campaign to retain his post in a 2012 recall election violated Wisconsin law, by coördinating fund-raising and spending with so-called “independent” dark-money groups, and avoiding disclosure of donors’ names. The court did so by rewriting the state law in question, so that the kind of coördination the campaign was being investigated for is now unrestricted in Wisconsin.

Francis Schmitz, the special prosecutor conducting the Walker investigation, was confident that, under Wisconsin law, when a nonprofit group spends money on issue advocacy in coördination with a candidate’s campaign committee, the committee must report that spending as a contribution to it or the candidate. He built a case that Walker and his campaign organization Friends of Scott Walker carried out “a criminal scheme.” Documents show that they asked donors to contribute to a nonprofit, Wisconsin Club for Growth, which ran issue ads for the benefit of the candidate, to evade regulations governing contributions to candidates and their campaigns.

But, in an opinion by Justice Michael J. Gableman, the conservative majority ruled that the state law applies only to “express advocacy”—that is, advocacy explicitly in favor of or against a specific candidate—and that “issue advocacy, whether coordinated or not,” is beyond its reach. As a result, Gableman wrote, “the special prosecutor’s legal theory is unsupported in either reason or law,” and “the investigation is closed.”

With this decision, the national conservative movement against campaign-finance regulation won a critical regional battle. As Judge Frank Easterbrook wrote, for the United States Court of Appeals for the Seventh Circuit last September, in a decision saying that the Wisconsin Supreme Court should resolve these issues, “If campaigns tell potential contributors to divert money to nominally independent groups that have agreed to do the campaigns’ bidding … contribution limits become porous, and the requirement that politicians’ campaign committees disclose the donors and amounts become useless.”

The landmark Citizens United decision, five years ago, makes this issue extremely significant. In that case, the conservative majority of the U.S. Supreme Court struck down limits on “independent” spending in political campaigns by for-profit corporations, labor unions, and nonprofit groups, as an infringement on their right to free speech under the First Amendment. “By definition,” Justice Anthony Kennedy wrote for the Court, “an independent expenditure is political speech presented to the electorate that is not coordinated with a candidate.”

Independent spending cannot corrupt a candidate, the process of an election, or the workings of American democracy, Kennedy asserted in a central part of his opinion, because it is illegal to coördinate the use of that spending with a campaign’s goal of electing the candidate, which puts candidates on notice about the contamination that results from connecting the two.

But, as Easterbrook pointed out, “the Supreme Court has stated repeatedly that, although the First Amendment protects truly independent expenditures for political speech, the government is entitled to regulate coordination between candidates’ campaigns and purportedly independent groups.” What the Court has yet to do is say what “coordination” means. Those who believe that money equals speech, and that American democracy is strengthened when money floods politics, are intent on persuading courts to do what the Wisconsin Supreme Court did: define what coördination covers as narrowly as possible, thus allowing a lot of coördinated advocacy by putting it outside the limits of the law.

To understand how the Wisconsin court came to this decision, Gableman is the ideal justice to focus on. As an undistinguished county trial judge, he was recruited by business organizations to run against Louis Butler, a liberal and the court’s only black member, in the 2008 election. He narrowly won, giving the conservatives a majority, in a campaign so ugly that the Wisconsin Judicial Commission brought charges against Gableman for “reckless disregard for the truth.” He had run TV ads that gave the false impression that Butler had tried “to put criminals on the street.” (In two reviews of the charges, Gableman was not sanctioned for reasons better explained by politics than logic.)

According to the Center for Media and Democracy, a liberal watchdog group in Wisconsin, Gableman would not have been elected without the support of Wisconsin Club for Growth, the state arm of the national Club for Growth, and Wisconsin Manufacturers & Commerce, the state chapter of the U.S. Chamber of Commerce. These two groups spent a total of $2.75 million on so-called issue ads during the campaign, more than five times what the Gableman campaign spent. They are, as the center noted, the “same groups that allegedly coordinated with Walker and brought the challenge to these coordination rules.”

The special prosecutor formally asked Gableman to recuse himself from deciding the case about the John Doe investigation, based on the well-established principle that a judge should disqualify himself if his impartiality can be reasonably questioned. (The prosecutor also asked that another justice recuse himself, for the same reasons.) But under a recusal rule proposed by Wisconsin Manufacturers & Commerce, among other groups, and adopted by the Wisconsin Supreme Court, in 2009, by a 4–3 conservative-liberal split, a justice need no longer recuse himself because he received campaign contributions from, or was the beneficiary of, “independent” spending by a person or group seriously affected by the case.

Someday, a novelist with Wisconsin roots will tell the story of Walker’s engagement in squalid politics—and whether it carried him to the White House. Now, however, it is possible to document the close ties between the national network of major conservative donors backing Walker and the conservative lobbying groups that turned the Wisconsin court into a political tool, which forfeited much of its remaining legitimacy with last week’s ruling.

Court documents unsealed last August include:

An April 28, 2011, e-mail from Kate Doner, a fund-raising consultant to the Walker campaign, to R.J. Johnson, a top adviser to Walker, his campaign, and Wisconsin Club for Growth. “As the Governor discussed,” Doner wrote, “he wants all the issue advocacy efforts run thru one group to ensure correct messaging. We had some past problems with multiple groups doing work on ‘behalf’ of Gov. Walker and it caused some issues. In Wisconsin, a 501(c)(4) is the legal vehicle that runs the media/outreach/GOTV campaign. The Governor is encouraging all to invest in the Wisconsin Club for Growth. Wisconsin Club for Growth can accept Corporate and Personal donations without limitations and no donors disclosure.”

A June 20, 2011, e-mail to Walker from Kelly Rindfleisch, who coordinated fund-raising by Walker on behalf of Wisconsin Club for Growth, with an itinerary for a fund-raising trip, background on donors he was scheduled to meet, and talking points. “Stress that donations to WiCFG are not disclosed and can accept corporate donations without limits,” Rindfleisch wrote, and “let them know that you can accept corporate contributions and it is not reported.”