ILLEGAL COORDINATION BETWEEN CANDIDATES AND “INDEPENDENT” CAMPAIGN SPENDING

As I described in my last post, one of the Supreme Court’s justifications for its decisions allowing unlimited spending by outside groups in our elections was that their spending would be independent of any candidate’s campaign. Therefore, as Justice Anthony M. Kennedy wrote in the Citizens United decision, such expenditures “do not give rise to corruption or the appearance of corruption.” [1]

However, in reality, many outside groups spending large sums of money on our elections are not independent but coordinate their activities with candidates and their campaigns. One of the most blatant and well-documented examples of coordination between a candidate and outside groups is that of Wisconsin Governor Scott Walker and two non-profit, “social welfare,” 501(c)(4) groups: the Wisconsin Club for Growth and the Wisconsin Manufacturers and Commerce group. [2]

In 2012, when Governor Walker was facing a recall election, he worked closely with these two organizations to raise millions of dollars that were spent supporting his re-election and attacking his opponent. He and his staff advised donors that contributions to these groups would not be disclosed and that corporate contributions were welcome. This bypassed Wisconsin’s laws requiring disclosure of campaign donors and prohibiting corporate donations.

Walker knew where financial support for his re-election was coming from but the public did not. So he rewarded his secret supporters. For example, his top legislative priority after he won the election was passing a mining bill drafted by an out-of-state mining corporation, Gogebic Taconite. It had secretly contributed $700,000 to the Wisconsin Club for Growth. Also after the election, Menard Hardware got a $1.8 million tax credit from an economic development agency that Governor Walker chaired. Its CEO had secretly given $1.5 million to the Wisconsin Club for Growth at Walker’s behest.

These donations came to light two years later in an investigation into allegations of coordination between Walker’s campaign and these two, supposedly independent, outside groups. The investigation was led by both Republican and Democratic prosecutors, as well as Wisconsin’s non-partisan elections board.

Eventually, Walker and his campaign challenged the investigation in Wisconsin’s Supreme Court. It ruled 4 – 2 in their favor, stopping the investigation. Overturning years of precedent, it ruled that the coordination between Walker’s campaign and the two outside groups was constitutionally protected as long as the outside groups didn’t explicitly call for the election or defeat of a candidate.

However, that’s not the end of the story, but rather the beginning of a related one. The four justices who voted to declare the coordination legal, had themselves received a combined $10 million of support in their elections from none other than the Wisconsin Club for Growth and the Wisconsin Manufacturers and Commerce group. In most cases, these two groups had spent more on the judges’ elections than the candidates themselves. For example, in 2011, the two groups spent nearly $3.7 million supporting Justice David Prosser’s election. This was five times as much as the candidate’s campaign spent and he ended up winning by just 7,000 votes (out of 1.5 million cast or less than 0.5%: 50.17% to 49.70%). In 2008, the two groups spent $2.75 million in support of Justice Michael Gableman, over six times what the candidate’s campaign spent. He won by just 20,000 votes (out of 740,000 votes cast or less than 3%: 51.2% to 48.5%). The spending by these two outside groups very likely had a decisive effect on these elections.

When the special prosecutor defending the investigation into the two groups’ coordination with the Walker campaign asked Justices Gableman and Prosser to recuse themselves because of their conflict of interest, they refused to do so. As a result, these justices not only legalized what Governor Walker had done, but also legalized the actions of these deep-pocketed supporters of their elections and coordination with these groups in their own campaigns. [3]

Their decision is now being appealed to the U.S. Supreme Court. It will be interesting to see if the U.S. Supreme Court will take this opportunity to reconsider their Citizens United decision in light of what has happened in its aftermath. The evidence clearly contradicts their rationale for allowing unlimited contributions and spending by outside groups: that it would be independent of candidates’ campaigns and would not give rise to even the appearance of corruption. There has been coordination among outside groups and candidates’ campaigns, followed by blatant corruption of public decision-making. Will the U.S. Supreme Court, therefore, clarify what is required for outside groups to operate truly independently of any candidate’s campaign? Will it recognize the clear potential for corruption and allow limits on contributions and spending? Hopefully, it will acknowledge the realities of our election campaigns and take corrective action.

[1]       Carney, E.N., 12/10/15, “Super PAC debate spotlights illegal coordination,” The American Prospect (http://prospect.org/article/super-pac-debate-spotlights-illegal-coordination)

[2]       Fischer, B., 5/19/16, “Will SCOTUS confront the results of Citizens United,” Moyers & Company (http://billmoyers.com/story/confronting-citizens-united/)

[3]       Fischer, B., 5/19/16, see above

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