Wisconsin Must Revisit Judicial Recusal Rules

Mar 15, 2017
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Current recusal rules lag behind most states, leading to conflicts of interest; recent history highlights importance of amending state recusal rules

WASHINGTON – Today, the Campaign Legal Center sent a letter to the Wisconsin Supreme Court supporting a petition by 54 retired state judges urging the adoption of rules requiring that judges step aside from cases involving their top campaign supporters.

“The U.S. Supreme Court has repeatedly emphasized that the constitution requires that judges recuse themselves from cases where there is a significant risk of bias or its appearance, even in the absence of actual bias,” said Brendan Fischer, federal and FEC reform program director at the Campaign Legal Center. “Wisconsin rules fall short of express U.S. Supreme Court guidance on recusal and puts Wisconsin behind the majority of other states in protecting the integrity of the judiciary.“

In 2009, the U.S. Supreme Court held in Caperton v. Masey (2009) that the constitution required that a state judge step aside from a case involving a company whose CEO had spent $3 million helping elect the justice through issue advocacy communications and independent expenditures. In several cases in the years since Caperton, the Court has repeatedly reaffirmed this holding and the broader importance of preserving the reality and appearance of judicial integrity.

Additionally, the importance of clear, objective recusal rules has become more pointed in light of recent changes to Wisconsin law that allow judicial candidates to control or otherwise coordinate with third-party groups engaged in “issue advocacy communications”—electoral ads that omit terms like “vote for” or “vote against” – which are the dominant form of electoral advocacy in Wisconsin Supreme Court elections. An individual is limited in how much they may give directly to a judicial candidate, and must have their contribution disclosed, but a person may secretly donate unlimited amounts to an issue advocacy group working directly with that candidate.

“While the U.S. Supreme Court in Caperton addressed significant independent spending that benefitted the justice in that case, Wisconsin’s new law permits a judicial candidate to control similar expenditures,” said Fischer. “At a minimum, the Court must revisit its recusal rules because the current standards were drafted with the understanding that issue advocacy communications would be independent of a judicial candidate, and this is no longer the case.”

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