Though it’s unlikely that the Wisconsin State Supreme Court’s upcoming hearing on judicial recusal standards will receive widespread attention, the new rules being discussed have important and potentially dangerous ramifications for First Amendment protections in judicial elections.
Currently, the state’s Code of Judicial Conduct does not require recusal based on a campaign contributor’s involvement in a case or campaign endorsement, but also does not make it explicit that recusal is unnecessary in those cases.
Petitions for a rule change from the Wisconsin Manufacturers & Commerce Association and the Wisconsin Realtors Association both request that the Court amend the current code to avoid the effect of a de facto rule that leads to recusal based solely on a campaign contribution, endorsement, or independent expenditures related to the campaign.
The petition from the Wisconsin Manufacturers & Commerce Association deals expressly with regulation of independent speech, which was also at issue in the Caperton case (and the resulting decision that prompted Wisconsin and other states to review their recusal standards). Their petition notes that the amended language suggested by the League of Women Voters would mandate recusal in cases where an individual or organization sponsored or financially support an independent communication.
The danger in adopting those rules not only contradicts significant legal precedent protecting independent speech differently and more rigorously than campaign contributions (due to the lack of a corrupting influence in independent speech), but also needlessly complicates the state judicial process and preemptively punishes individuals for exercising their legal right to speak out in elections.
The Wisconsin Realtors Association argues, similarly, that a rule mandating recusal for a judge who has received a lawful campaign contribution is unnecessary. Such contributions are legal, disclosed, and available to the public, so it follows that requiring a judge to step down simply for following the law and conducting a campaign that adheres to the state’s other statutes does not make logical sense.
The language suggested by both the Realtors Association and the Manufacturers & Commerce Association simply asks the Court to adopt language clarifying that a contribution, independent expenditure, or endorsement, by themselves, do not mandate recusal. There are instances outside campaign finance regulations that often require judges to step down due to conflict of interest, and there are rules in place governing how and when that takes place. There has been no evidence presented to justify the argument that situations regarding campaign finance necessitate separate rules.
The League’s petition, however, attempts to do this by taking the Caperton decision out of context, making assumptions contrary to fact, and presuming that any individual speaking out on an election is looking to unduly influence a judge, and that every judge in unable to resist that influence.
In the Caperton decision, Justice Kennedy went out of his way to note that any anomalies arising from his opinion shouldn’t extend to new cases. Ignoring that note and the unique circumstances of that particular case certainly makes the League’s argument easier to make, but it inherently an inaccurate one.
The Center for Competitive Politics submitted a letter urging the Court to continue to protect important First Amendment rights, and not to adopt language penalizing individuals and causing adding unnecessary complexities to the state’s judicial process.
The Manufacturers & Commerce Association notes a decision in an earlier Wisconsin case (Siefert v. Alexander) that “more rather than less information advances democratic values and the government should not be the arbiter of which ideas are true or false, important or unimportant, helpful or harmful.” The Court would do well to keep that principle in mind during the hearings and when crafting new rules.