Should Michael Gableman Investigate 2020 Election?

Wisconsin Assembly Speaker Robin Vos recently announced that he had hired former Justice Michael Gableman and two retired police detectives to investigate the 2020 election in Wisconsin, with a third detective still expected to be added. Under the contract, Gableman will “analyze and delegate to the investigators leads/allegations” from any source.

This is not the first effort by Republican legislators to investigate the election and throw doubt on the outcome. The Assembly Committee on Campaigns and Elections held a hearing to allow Trump supporters to vent. So far as I can tell, this hearing has not resulted in a report, although the Gableman contract refers to it as a source of accusations to be investigated.

In addition, the Joint Legislative Audit Committee ordered an audit by the nonpartisan Legislative Audit Bureau of the election. The problem with this, from the viewpoint of the legislators, is that the Audit Bureau will not report a stolen election unless it finds evidence that the election was stolen. Thus, it unlikely to satisfy Trump’s demand that Vos and the others do more to overturn the election results.

With Gableman, that is not a problem. An article in the Journal Sentinel reports that Gableman has already declared that the election was stolen. He addressed a crowd at a pro-Trump rally in a parking lot at American Serb Hall on November 7—shortly after Joe Biden’s electoral victory— and said this: “I don’t think anyone here can think of anything more systematically unjust than a stolen election”

In choosing Gableman, Vos has chosen someone who is both highly partisan and ethically flexible. He demonstrated his ethics even before becoming a state Supreme Court Justice in his 2008 campaign against then Justice Louis Butler. His ad claimed that, as a defense attorney, “Butler worked to put criminals on the street.” Ignoring the principle that Public Defenders have an ethical obligation to present the best defense that can be mustered, the ad asserted that:

“Butler found a loophole. Mitchell (the defendant) went on to molest another child. Can Wisconsin families feel safe with Louis Butler on the Supreme Court?”

But the ad did not tell viewers that Mitchell served time in prison, before being released and committing the subsequent crime.

The Wisconsin Judicial Commission concluded that Gableman had committed misconduct by running a misleading ad. The members of the Wisconsin Supreme Court split 3-3. This deadlock led to the state Judicial Commission abandoning its ethics case against state Justice Gableman.

While conceding “that the advertisement run by Justice Gableman’s campaign committee was distasteful;” Justices Prosser, Roggensack, and Ziegler voted to drop the case against him. The three other justices,  Abrahamson, Ann Bradley, and Crooks disagreed and offered this conclusion:

“Justice Gableman had knowledge of Butler’s representation of Mitchell to which the advertisement referred and had knowledge that Louis Butler’s representation of Mitchell in finding a ‘loophole’ did not lead to the release of Mitchell.”

A second illustration of Gableman’s view of ethics is his participation in the decision on the so-called second John Doe investigation. The case started with an investigation by the Milwaukee District Attorney of various misdeeds related to the Scott Walker Milwaukee County administration (the first John Doe investigation).

During the course of this investigation, evidence surfaced of coordination between numerous conservative organizations and the Scott Walker for Governor organization, as well as Walker himself. This is important because it has long been a principal of both Wisconsin and federal election administration that, while outside organizations are free to spend unlimited funds favoring or opposing a candidate, if they do so while coordinating with a candidate, they cease being able to claim independence.

Instead, expenditures resulting from coordination must be treated as in-kind contributions to the candidate and subject to the limits on campaign contributions. While the US Supreme Court in recent years has shredded most attempts to limit campaign spending, it has left intact the limit on coordinating.

Former US Justice Anthony Kennedy was especially supportive of this limit. In several decisions, he pointed to the non-coordination rule as a necessary safeguard. Without it, he argued, campaign contribution limits would be meaningless. Outside groups, with no limits on spending, would take over a campaign’s role if money got tight. Secondly, and perhaps optimistically, Kennedy argued that the limit reduced the danger of “quid pro quo” corruption. Donations made to an independent organization would, in his view, create less of a sense of obligation than those made directly to a candidate.

Gableman wrote the Wisconsin Supreme Court decision shutting down the John Doe investigation. His argument conflates two separate issues in campaign regulation. One is the limit, already discussed, on coordination between candidates and supposedly independent outside groups.

The other addresses whether independent expenditures are treated as attempts to influence an election. As the result of a series of US Supreme Court decisions, many clear attempts to influence an election are exempt. The issue is whether the message explicitly advocates the election or defeat of a candidate. Thus, a communication attacking a candidate’s policies is not covered unless that attack is followed by an explicit exhortation to vote against that candidate.

In his decision, Gableman mashed the two concepts together, concluding that the restriction on coordination is limited to express advocacy. This leads to nonsensical results. For instance, discussion between a campaign and outside groups that result in the outside group supplying space for a campaign office is not express advocacy and would seem to be allowed under Gableman’s policy.

Ironically, Gableman reached this conclusion while quoting from US Supreme Court decisions. Yet the federal courts have never limited the non-coordination rule to communications that explicitly advocate the election or defeat of a particular candidate.

Gableman’s Doe decision also offers a window on his ethical standards. First, it served the interest of his political supporters and donors, many of whom took part in the coordination. In addition, it benefitted him personally. Apparently, the Doe prosecutors had evidence that Justices Prosser and Gableman also coordinated with the outside groups. Based on that, they asked the two justices.to recuse themselves, but to no avail.

Based on what we know so far, it is possible to speculate on where the two investigations will end up. The audit bureau study will be factual and cautious and will stick to the evidence. It will not find that the election was stolen. It will not make either Vos or Trump happy.

The Gableman investigation, on the other hand, is likely to conclude with a stolen election claim. After all, both Gableman and one of the retired police detective Vos hired have already made statements to this effect. If not, Vos can exercise the secrecy clause in the Gableman contract to keep it forever under wraps.