Milwaukee County District Attorney John Chisholm (left) and other prosecutors argue Wisconsin Supreme Court Justices David Prosser (center) and Michael Gableman (right) should not have been allowed to hear the case because their campaigns benefited from work by some of the groups being investigated. Credit: Journal Sentinel files

SHARE

By of the

Madison — Milwaukee County District Attorney John Chisholm has asked the U.S. Supreme Court to overturn a decision by Wisconsin's high court to shut down an investigation of Gov. Scott Walker's campaign and conservative groups backing him.

Chisholm and other prosecutors argue Wisconsin Supreme Court Justices David Prosser and Michael Gableman should not have been allowed to hear the case because their campaigns benefited from work by some of the groups being investigated.

They also want the U.S. Supreme Court to review whether the Wisconsin court got it right when it ruled candidates have free speech rights to work closely with advocacy groups during their campaigns, according to sources.

A copy of the filing was submitted this week but has not yet been docketed by the U.S. Supreme Court. It has not yet been made available to the public or media.

The U.S. Supreme Court — one member short because of the death of Justice Antonin Scalia — takes only a tiny percentage of cases filed with it each year. Four justices are needed to accept a case.

Joining Chisholm in the filing were two other Democratic district attorneys, Ismael Ozanne of Dane County and Larry Nelson of Iowa County.

Chisholm in 2012 launched the probe of the Republican governor's campaign and brought in other district attorneys as the investigation spread to people and groups based in other counties. Republican District Attorneys Kurt Klomberg of Dodge County and Jane Kohlwey of Columbia County worked on the probe in the early stages but did not join the effort to get the case heard by the U.S. Supreme Court.

Special prosecutor Francis Schmitz led the probe, which was conducted under the John Doe law. That law allowed prosecutors to force people to testify and turn over documents, while barring them from talking about the investigation with others.

The probe was effectively halted in January 2014 when the judge overseeing the investigation found the activities in question were not illegal. Schmitz sought to overturn that finding, while the Wisconsin Club for Growth and two of its advisers brought legal challenges to stop the investigation for good. One of those advisers, R.J. Johnson, worked both for Walker and the Wisconsin Club for Growth at the same time.

The state Supreme Court last year ruled 4-2 against the prosecutors. The court initially determined all evidence prosecutors had gathered had to be destroyed but later told prosecutors they should instead turn it over to the justices. The high court has allowed prosecutors to hang onto it while they pursue their appeal with the U.S. Supreme Court.

Much of that material has not been made publicly available, though some key details have come out through leaks and court filings. Because the investigation was conducted in secret, large portions of many court filings have been blacked out for the public.

The case centers on how much candidates can work with political groups at election time. Many of those groups engage in so-called issue advocacy, in which they run ads that look like typical campaign spots but avoid regulation by not using phrases like "vote for" and "vote against."

The Wisconsin court ruled coordination between candidates and such groups is allowed because they do not explicitly tell people how to vote. Prosecutors disputed that conclusion and said some of the ads they investigated did flatly tell people to support or oppose candidates.

Among those voting against prosecutors were Prosser and Gableman. Prosser, 73, on Wednesday announced he would retire from the court on July 31, allowing Walker to appoint his successor for the next session of the Wisconsin Supreme Court.

Among the groups being investigated were the Wisconsin Club for Growth and the political arm of Wisconsin Manufacturers & Commerce, the state's largest business lobby.

The Wisconsin Club for Growth is estimated to have spent $507,000 for Gableman and $520,000 for Prosser. WMC spent an estimated $1.8 million for Gableman and $1.1 million for Prosser.

In addition, Citizens for a Strong America — a group funded entirely by the Wisconsin Club for Growth — spent an estimated $985,000 to help Prosser.

In a letter last year defending his participating in the case, Prosser acknowledged some targets of the probe performed work that was "very valuable to my campaign" but noted the activity came at a time when there was no reason to expect they would appear before him in court.