judicial campaign contributions

  • November 5, 2009
    Though a slim majority of the Wisconsin Supreme Court doesn't believe judicial campaign contributions should trigger judicial recusals, the state legislature is moving in a different direction. Today, the Wisconsin State Senate approved a bill to create a public financing system for state Supreme Court campaigns. The measure would allow taxpayers to opt for supporting the financing system by check-off on their tax returns. The Associated Press reports that eligible candidates would get up to $100,000 from the new fund for a primary and up to $300,000 for a general election. Earlier this week the Joint Finance Committee also approved the measure called the Impartial Justice Bill. Justice at Stake's GavelGrab blog reports that if the measure is signed into law, Wisconsin would join North Carolina and New Mexico in adopting public financing for high court elections. The blog also notes that recent polling shows strong support -- more than 60 percent -- for the proposal.

    As noted yesterday, the Wisconsin Supreme Court recently adopted a new judicial conduct rule that states campaign contributions alone are not enough to force a judge from hearing a case.

  • November 4, 2009
    Only months after the U.S. Supreme Court ruled that judicial campaign contributions can force recusal in certain instances, the Wisconsin Suprmeme Court narrowly voted in favor of a judicial conduct rule that says endorsements and campaign contributions alone are not enough to force a judge off a case.

    On a 4-3 vote, the Wisconsin Supreme Court adopted the rule, which was backed by business lobbying groups. Justice Patience Roggensack, writing for the majority, maintained that the rule will "send a message that making lawful contributions is not a dishonorable thing to do and it's not a dishonorable thing to receive."

    But in dissent, Justice N. Patrick Crooks wrote, "I think what it's going to do is add to the perceptions (of bias) that are apparently out there rather than put them to rest." The Milwaukee Journal Sentinel reported that the majority in the case, In the matter of Amending the Rules of Judicial Conduct, rejected an alternate proposal pushed by the League of Women Voters of Wisconsin that would have triggered judicial recusals in certain instances.

    In an article for the State Bar of Wisconsin's Web site, Alex De Grand wrote that the "First Amendment outweighed due process arguments," noting that Justice Roggensack wrote, "My major concern is the First Amendment."

    In June, the U.S. Supreme Court ruled in Caperton v. Massey that the First Amendment, however, did not prevent it from fashioning a recusal rule. "We conclude," Justice Anthony Kennedy wrote for the 5-4 majority, "that there is a serious risk of actual bias - based on objective and reasonable perceptions - when a person with a personal stake in a particular case had a significant disproportionate influence in placing the judge on the case by raising funds or directing the judge's election campaign when the case was pending or imminent. The inquiry centers on the contribution's relative size in comparison to the total amount of money contributed to the campaign, the total amount spent in the election, and the apparent effect such contribution had on the outcome of the election."

    In guest post for ACSblog, Professor Richard L. Hasen, of Loyola Law School, noted that while judicial elections, which 39 states have, are not going to disappear, Caperton would provide a "backstop for the most egregious cases of large campaign spending, when spending limits and judicial speech codes are otherwise off the table or severely limited."

    For more analysis of judicial elections, see video of a panel discussion, "Judicial Elections: Financing, Recusal, and Judicial Independence," from the 2009 ACS National convention and an ACSblog interview with Justice at Stake's Bert Brandenburg on the impact of Caperton