In 2017, the Wisconsin Supreme Court rejected a petition brought by 54 retired judges urging the court to adopt objective rules addressing judicial recusal in cases involving the top financial supporters of a judge’s election campaign. The proposed rules mandated recusal if a party to a case supported a judge’s campaign above a threshold dollar amount.
The petition was not without controversy. Some justices took offense at the suggestion that judges could not decide for themselves whether campaign contributions or spending might affect their ability to remain impartial.1 Other justices argued that the current rules, which leave the decision to recuse to an individual justice, created conditions that undermined the public’s trust in the judiciary.2 The justices divided along ideological lines and declined to revisit the court’s recusal rules.
Brendan Fischer, U.W. 2011 with honors, is the director of federal and FEC reform at the Washington D.C.-based Campaign Legal Center. He has expertise in campaign finance and government transparency issues and works on a broad range of election and campaign finance cases.
Nick Harken, Marquette 2010 with honors, is a trial and appellate attorney at McCoy Leavitt Laskey LLC, Waukesha. He litigates cases throughout the United States, and his work has included civil rights and campaign finance cases in Wisconsin.
Overlooked in the discussion was how the court’s existing recusal rules rest on assumptions rendered irrelevant by Wisconsin’s recent overhaul of its campaign finance law in 2015 Wis. Act 117.
Current recusal rules state that a judge need not recuse based solely on a party’s funding of an “independent communication” by third-party groups.3 The comment to those rules explains the court’s reasoning: in contrast with contributions to a judge’s own campaign, donations to and spending by these third-party groups “must be completely independent of the judge’s campaign, as required by law, to retain their First Amendment protection.” That was true in 2010 when the court’s recusal rules were adopted. But it is no longer true today following passage of Act 117.
Act 117 eliminated statutory provisions that had previously been interpreted as regulating coordination between candidates and groups engaged in “issue advocacy” – meaning ads that may praise or attack a candidate but do not expressly advocate for their election or defeat because they omit words such as “vote for” or “vote against.”4
Despite that significant change, Act 117 did not change the definition of “candidate.” That definition still includes judicial candidates. And so-called issue ads are the dominant form of electoral advocacy in judicial campaigns; at least $13.2 million has been spent on issue ads in the last six supreme court races.
Accordingly, under Act 117 judicial candidates may coordinate with third-party groups so long as any coordinated activity avoids express advocacy. Contrary to the supreme court’s prior reasoning for its recusal rules, it is no longer “required by law” that issue advocacy “communications must be completely independent of the judge’s campaign.”
Most problematic is that unlike a candidate’s official campaign committee, which may only accept contributions within statutory limits and must publicly disclose the identities of all major donors, those third-party groups may accept unlimited and often undisclosed donations with full knowledge of the candidate. If elected, judges will know the sources of their financial support, but the public – and in particular, parties that may come before the judge – will not. Litigants will have no way of knowing whether opposing parties contributed significantly to the judge’s election through contributions to groups coordinating with the judge’s campaign.
That result raises significant 14th Amendment due process concerns under the U.S. Supreme Court case Caperton v. A.T. Massey Coal Co.In Caperton, the Supreme Court held that due process requires that a judge recuse from a case involving an individual whose financial support for a judge’s election had a “significant and disproportionate influence on the outcome,” such that “the probability of actual bias on the part of the judge or decision maker is too high to be constitutionally tolerable.”5 Yet, when contributions to a third-party group working directly with a candidate’s campaign are not publicly disclosed under Wisconsin’s new campaign finance law, a litigant cannot even know whether to ask a judge to recuse.
This article addresses the lack of oversight created by Wisconsin’s new campaign finance law with respect to judicial campaigns and elections. Due process requires that litigants have their cases heard by a neutral and objectively unbiased decision maker, but that guarantee may be undermined by the new campaign finance regime, raising significant concerns about the wisdom of the law and the Wisconsin Supreme Court’s recent refusal to revisit its recusal rules in light of it. Although this article does not take a position on the specific recusal thresholds suggested by the 54 retired judges, it does encourage the court to address the threats to due process and the integrity of the judiciary posed by Wisconsin’s current campaign finance system.
Note that this article discusses I.R.C. §§ 501(c)(4) and 527 organizations. I.R.C. § 501(c)(4) organizations are tax-exempt, nonprofit “social welfare” organizations that may engage in some political activity. I.R.C. § 501(c)(4) organizations are not required to publicly disclose their donors. I.R.C. § 527 organizations are political organizations that must disclose their donors.
Overview of Wisconsin’s Campaign Finance Law Changes
In January 2016, Act 117 became law, repealing and replacing Wis. Stat. chapter 11, the state’s campaign finance law.6 Act 117’s changes are appropriately described as a complete overhaul of Wis. Stat. chapter 11.
Yet the resulting legislation was narrow in scope. Wisconsin’s new campaign finance law generally only regulates third-party political organizations when they engage in “express advocacy,” and express advocacy is defined narrowly. It is limited to nine examples of terms, such as “vote for” or “elect,” used “with reference to a clearly identified candidate and that unambiguously relates to the election or defeat of that candidate.”7
Under the new law, organizations limiting themselves to
issue advocacy, even if coordinating those activities with
judicial campaigns, are subject neither to contribution
limits nor to disclosure requirements.
Chapter 11’s introduction now states that the campaign finance laws are to be construed “consistent with the right of the public to have a full, complete, and readily understandable accounting of those activities expressly advocating for or against candidates for office or for or against referendums,”8 but that “(n)othing in this chapter may be construed to regulate issue discussion, debate, or advocacy…. ”9
In short, Wisconsin’s new campaign finance law is no longer intended to give the public “full, complete, and readily understandable accounting” of any campaign activity other than “express advocacy.” Activity limited to “issue discussion, debate, or advocacy,” even if coordinated with a candidate, is now beyond the reach of Wisconsin’s campaign finance laws.10
Notably, Act 117 did not change the definition of “candidate.”11 Because Wisconsin elects its judges, judicial candidates are now permitted to coordinate campaign activities with outside groups without violating Wisconsin’s new campaign finance laws so long as the coordinated activities do not include express advocacy.
Issue Advocacy in Wisconsin Judicial Elections
Chapter 11’s carving out of issue advocacy from regulation is particularly concerning in the context of judicial elections, given that issue advocacy has become the dominant form of advocacy in Wisconsin judicial races.
In the 2016 Wisconsin Supreme Court race, for example, “issue ad” groups spent more than $2.25 million, while the two leading candidates’ campaigns spent $777,470.12 Over recent years Wisconsin Manufacturers and Commerce, a trade association that also controls an issue-focused I.R.C. § 501(c)(4) organization, WMC Issues Council, spent at least $7.25 million electing the Wisconsin Supreme Court's conservative majority.13 In three out of the four supreme court races since 2007, Wisconsin Manufacturers and Commerce alone has spent more than the candidate it supported.14
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Issue advocacy spending is not limited to supreme court campaigns. In a 2013 Milwaukee County circuit court race, an I.R.C. § 501(c)(4) issue-advocacy organization at one point had spent $167,000 in support of a candidate’s circuit court election, exceeding the entire amount spent by that candidate’s own campaign.15
Wisconsin’s new law leaves unregulated the dominant form of campaign activity in judicial elections. Prior Wisconsin law required such issue advocacy to be independent of the judicial candidate’s campaign to avoid being subject to contribution limits and donor disclosure.16 Coordinated spending was treated as an in-kind contribution to the candidate’s campaign, as courts have recognized that allowing coordination between candidates and third-party groups greatly increases the potential corrupting value of those groups’ expenditures.
In the seminal 1976 campaign finance case, Buckley v. Valeo, the U.S. Supreme Court acknowledged that coordinated spending is inherently more valuable to a candidate than independent spending:
“[I]independent expenditures may well provide little assistance to the candidate's campaign and indeed may prove counterproductive. The absence of prearrangement and coordination of an expenditure with the candidate or his agent not only undermines the value of the expenditure to the candidate, but also alleviates the danger that expenditures will be given as a quid pro quo for improper commitments from the candidate.”17
Wisconsin’s new campaign finance law no longer imposes such independence. Under the new law, organizations limiting themselves to issue advocacy, even if coordinating those activities with judicial campaigns, are subject neither to contribution limits nor to disclosure requirements.
Caperton v. Massey: Judicial Campaign Spending and Due Process Violations
The impact of Wisconsin’s new campaign finance law on due process rights is partly illustrated by the 2009 U.S. Supreme Court case, Caperton v. A.T. Massey Coal Co.,18 which addressed the constitutional implications of campaign spending in judicial campaigns. In that case, Massey Coal chairman Don Blankenship spent more than $3 million on independent expenditures and “issue advocacy” communications to help elect a judicial candidate challenging the incumbent in a West Virginia Supreme Court race.19 As part of those efforts, Blankenship financed “And For The Sake Of The Kids,” an organization formed under I.R.C. § 527, which must disclose its donors. “And for the Sake Of The Kids” funded “issue ads” critical of the incumbent justice’s record while avoiding express advocacy for any candidate.20
The U.S. Supreme Court found that Blankenship’s favored justice should have recused himself when he later cast a decisive vote in a case involving Massey Coal. The Court emphasized that there are circumstances “in which experience teaches that the probability of actual bias on the part of the judge or decision maker is too high to be constitutionally tolerable.”21 The Court explained that when a donor “had a significant and disproportionate influence on the outcome” of a judge’s election, “the risk that Blankenship’s influence engendered actual bias is sufficiently substantial that it ‘must be forbidden if the guarantee of due process is to be adequately implemented.’”22
Despite no finding of actual bias, the Court held that the 14th Amendment Due Process Clause is implicated when a judge hears a case involving a litigant who independently spent significant sums to help elect the judge.23 The Court further emphasized that the recusal test laid out in Caperton was a constitutional minimum, and made clear that “States may choose to ‘adopt recusal standards more rigorous than due process requires.’”24
The U.S. Supreme Court has repeatedly reaffirmed the specific recusal test set out in Caperton and the broader importance of protecting judicial integrity.25 In a 2016 case, Williams v. Pennsylvania, the Court reiterated that the relevant question for recusal is “not whether a judge harbors an actual, subjective bias, but instead whether, as an objective matter, ‘the average judge’ in his position is ‘likely’ to be neutral, or whether there is an unconstitutional ‘potential for bias.’”26
In another 2016 case, Williams-Yulee v. The Florida Bar, the Court again emphasized that campaign donations or expenditures can easily jeopardize judges’ perceived impartiality, even in the absence of actual bias. “[E]ven if judges were able to refrain from favoring donors, the mere possibility that judges’ decisions may be motivated by the desire to repay campaign contributions is likely to undermine the public’s confidence in the judiciary.”27
Due Process Rights Complicated Under Wisconsin’s Campaign Finance Law
If the Supreme Court in Caperton found that a litigant’s 14th Amendment due process rights were violated due to the risk of actual or apparent bias from independent campaign spending, any court should reach the same result when coordinated campaign spending is involved. The result is the same regardless whether the coordinated spending involves issue or express advocacy. Indeed, despite Blankenship’s use of issue-based advertisements through his organization, the Caperton Court still found that his activity posed a risk of actual bias.
First Amendment Issues in State ex rel. Two Unnamed Petitioners v. Peterson Conflict with 14th Amendment Concerns in Caperton. The apparent result, however, is complicated by Wisconsin’s new campaign finance law protecting coordinated issue advocacy. Wisconsin’s new campaign finance law arose out of the argument that the First Amendment protected issue advocacy, regardless of whether it is coordinated between candidates and other groups, including I.R.C. § 501(c)(4) organizations that keep their donors secret and are not subject to contribution limits.
Specifically, the new law followed the Wisconsin Supreme Court’s 2015 case State ex rel. Two Unnamed Petitioners v. Peterson.28 That decision ended an investigation into whether Gov. Scott Walker and his campaign coordinated with issue advocacy groups, primarily the I.R.C. § 501(c)(4) group Wisconsin Club for Growth, to avoid donor disclosure laws and campaign contribution limits.29 Although Wisconsin law had previously been interpreted to regulate such activity, the Wisconsin Supreme Court overturned those decisions and indicated that any attempt to regulate issue advocacy violates the First Amendment.30 The Wisconsin legislature codified that interpretation in Act 117.
Yet, contrary to Wisconsin’s interpretation of the First Amendment, other courts have not recognized constitutional protections for coordinated campaign activity, whether involving issue or express advocacy.31 Rather, they have indicated the opposite, explaining that limiting coordination is essential to protect the integrity of contribution limits and disclosure requirements.
Logically, litigants cannot raise due process concerns
if they do not know the identity of the donors that
supported a judge’s election and the amount.
Just before the Wisconsin Supreme Court addressed the issue and Wisconsin changed its campaign finance laws, the Seventh Circuit emphasized in O’Keefe v. Chisholm that “neither a state nor a federal court had held that … regulation of coordinated fund-raising and issue advocacy violates the First Amendment.”32 The O’Keefe court noted, when addressing coordination between candidates and issue advocacy groups, that “[i]f campaigns tell potential contributors to divert money to nominally independent groups that have agreed to do the campaigns’ bidding, these contribution limits become porous, and the requirement that politicians’ campaign committees disclose the donors and amounts becomes useless.”33
Even after Peterson, federal courts continue to reject the notion that the First Amendment prevents regulation of election-related issue advocacy. The 2016 case Independence Institute v. FEC involved a challenge to a federal campaign finance law requiring donor disclosure for “issue ads” run near elections.34 The plaintiffs advanced a similar argument to that of the petitioners in Peterson – that only express advocacy could be constitutionally regulated. A three-judge panel of the U.S. District Court for the District of Columbia rejected that argument, holding that the Supreme Court specifically “rejected the notion that the First Amendment requires Congress to treat so-called issue advocacy differently from express advocacy.” The U.S. Supreme Court summarily affirmed the decision.35
The Wisconsin Supreme Court’s reasoning in Peterson is alone. Act 117’s adoption of that reasoning will affect judicial elections and related 14th Amendment due process rights.
Coordinated Issue Advocacy in Judicial Campaigns Threatens 14th Amendment Due Process Rights. A predictable result of Peterson and the corollary Act 117 is that Wisconsin candidates, including judicial candidates, will coordinate with third-party groups to maximize their campaign efforts. Those who have the means, such as corporations, unions, and wealthy individuals, may seek to maximize influence on judicial candidates by donating to organizations coordinating with candidates. Whereas contributions to the candidate’s campaign are capped and must be publicly disclosed, contributions to an outside organization can be made without limit or disclosure.
Wisconsin’s campaign finance changes could put even more pressure on interested parties to maximize donations. As one amicus brief filed in Caperton explained:
“For ethical and financial reasons, most corporations would prefer to avoid spending money on an election that involves candidates for a seat on a court where it has a matter pending…. In today’s election environment, however, a corporation must consider the likelihood that its opponent in high-stakes litigation may actively support one or more of the judges that will hear the case. Increasingly, corporations feel compelled to support their own candidates to guard against an adverse judgment that damages the company and its shareholders.”36
The due process issues arising out of Wisconsin’s new campaign finance laws are apparent. While the Caperton Court was concerned about millions of dollars in independent expenditures that benefitted a judicial candidate, Wisconsin’s new law permits a judicial candidate to control those expenditures so long as the expenditures avoid express advocacy. And while Caperton concerned an I.R.C. § 527 organization, which is required to disclose its donors, Wisconsin’s new law imposes no disclosure requirements or contribution limits on organizations that engage in coordinated issue advocacy.
Indeed, the new law follows the supreme court’s approval of a candidate coordinating with an I.R.C. § 501(c)(4) organization, which is neither required to disclose its donors nor subject to contribution limits. As applied to judicial elections, Wisconsin’s new law creates greater threats to due process rights than the campaign spending at issue in Caperton.
Wisconsin Lacks Safeguards Protecting Due Process Rights Under the State’s New Campaign Finance Law. Existing law and judicial conduct rules are inadequate to address the constitutional issues presented by Wisconsin’s new campaign finance law. As discussed at the outset of this article, Wisconsin’s current recusal rules assume that expenditures and communications, including issue advocacy communications, must be completely independent of a campaign to retain their First Amendment protection.37
But those rules were created before enactment of the new campaign finance laws, which expressly reject any attempt to regulate issue advocacy even if coordinated with a candidate’s own campaign. And, in Peterson, the Wisconsin Supreme Court abandoned the stated justification for its current recusal rules in holding that the First Amendment does not allow regulation of coordinated issue advocacy.38 In effect, judicial candidates’ coordinating with groups – so long as the groups do not engage in express advocacy – is not only unregulated but seemingly endorsed under Wisconsin’s current law.
Moreover, Wisconsin’s code of judicial conduct does not adequately address the due process issues inherent in Wisconsin’s new campaign finance laws. Although Wisconsin prohibits judicial candidates from personally soliciting contributions to their own campaign committees, that prohibition does not by its terms extend to the solicitation of contributions for other groups, such as an issue advocacy group that may be directly coordinating with the judge’s campaign.39
A separate judicial ethics rule governs a judge’s involvement in “extra-judicial” governmental, civic, or charitable activities and prohibits a judge from personally participating in soliciting funds. Even so, this rule applies only to sitting judges – not to non-incumbent judicial candidates – and still allows a judge to help the organization plan fundraising activities and to direct how the organization spends its funds.40
Regardless of those rules, as illustrated by Caperton, due process rights do not turn on whether a judge personally solicits funds used to support an election. Due process rights are protected by transparency and disclosure. Logically, litigants cannot raise due process concerns if they do not know the identity of the donors that supported a judge’s election and the amount donated. That logic becomes lost in Wisconsin’s new regulatory scheme by allowing coordination between a judicial candidate’s campaign and issue advocacy organizations that are not subject to contribution limits and disclosure requirements.
The recent petition by 54 retired judges urging the Wisconsin Supreme Court to adopt bright-line recusal rules will, it is hoped, serve as a starting point for a broader discussion about how to protect the integrity of the judiciary and due process rights of litigants. The court need not adopt the specific thresholds proposed in the petition, but it should invite the opportunity for a robust conversation on adapting its recusal rules to current circumstances.
Wisconsin amended its campaign finance law on the belief that the First Amendment protected issue advocacy from campaign finance regulation. But in doing so, it overlooked the effect on 14th Amendment due process rights created by unlimited and undisclosed donations flowing to issue advocacy groups coordinating with a judicial candidate’s campaign. Even acknowledging the views of certain individuals in Wisconsin with respect to the First Amendment, the U.S. Supreme Court has repeatedly made clear that state laws addressing judicial campaigns may regulate judicial elections differently without running afoul of the U.S. Constitution.41
At a minimum, preserving due process guarantees requires that there be transparency in judicial campaigns and regulation of coordination between judicial campaigns and outside organizations. To accomplish that, the Wisconsin Supreme Court should revisit its recusal rules, and the Wisconsin legislature should reconsider its new campaign finance law with respect to judicial elections.
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If you weren’t practicing law, what would you be doing?
This is an easy question for me because practicing law is my second career. Before law school, I worked as a compliance subcontractor, mainly in the oil and gas industry in Wyoming and Montana. That work involved sunup-to-sundown days and work periods sometimes extending over 20 continuous days. That certainly played a part in me finding a second career.
Since I left that career in 2007 to attend law school, the industry in those areas has slowed down. But if I wasn’t practicing law, you would probably find me in the Powder River Basin of southeast Montana and northeast Wyoming continuing my first career.
Nick Harken, McCoy Leavitt Laskey LLC, Waukesha.
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1 See Patrick Marley, Wisconsin Supreme Court Rejects Recusal Changes When Campaign Donors Are Litigants, Milwaukee Journal-Sentinel (Apr. 20, 2017).
3 SCR 60.04(8)
4 See, e.g., Wisconsin Coal. for Voter Participation Inc. v. State Elections Bd., 231 Wis. 2d 670, 605 N.W.2d 654 (Ct. App. 1999); Wis. El. Bd. Op. 00-02 (reaffirmed Mar. 26, 2008).
5 Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 877 (2009) (quoting Withrow v. Larkin, 421 U.S. 35, 47 (1975)) (emphasis added).
6 The legislation that repealed and replaced Wis. Stat. chapter 11, 2015 Wis. Act 17, was signed into law on Dec. 16, 2015. The new chapter 11 became effective Jan. 1, 2016.
7 Wis. Stat. § 11.0101(11). The nine terms mirror the “express advocacy” terms set forth in the U.S. Supreme Court caseBuckley v. Valeo, 424 U.S. 1 (1976). Those nine terms are “Vote For,” “Elect,” “Support,” Cast your ballot for,” “(Smith) for … (an elective office),” “Vote against,” “Defeat,” “Reject,” and “Cast your ballot against.”
8 Wis. Stat. § 11.0100 (emphasis added).
9 Id. (emphasis added).
10 Wis. Stat. § 11.1203.
11 Wis. Stat. § 11.0101(1).
12 Brennan Ctr. for Justice, Buying Time 2016 (Apr. 19, 2016).
13 Matt Rothschild, Pro-Bradley Groups Had a 4-1 Edge, Urban Milwaukee (Apr. 6, 2016); Wisconsin Democracy Campaign, Hijacking Recall 2012: Greater Wisconsin Committee, Jan. 24, 2011.
15 See Bruce Vielmetti, Milwaukee County Court Race Focuses Heavily on Scott Walker, Milwaukee Journal Sentinel (Mar. 29, 2013), (“The $167,000 spent by the conservative Club for Growth Wisconsin as of earlier this week exceeds the $114,000 Bradley's campaign reported spending as of March 18.”).
16 Wisconsin Coal. for Voter Participation Inc., 231 Wis. 2d 670.
17 Buckley, 424 U.S. 1 at 47. See also Heather Gerken, The Real Problem with Citizens United: Campaign Finance, Dark Money, and Shadow Parties, Marq. Law., Summer 2014, at 17.
18 Caperton, 556 U.S. 868 (2009).
19 Id. at 873.
20 See “And For the Sake of the Kids” ad. See also Williams-Yulee v. The Florida Bar, 135 S. Ct. 1656, 1675 (2016) (Breyer, J., concurring) (discussing the issue ads of “And for the Sake of the Kids”).
21 Caperton, 556 U.S. at 877.
22 Id. at 885.
23 Id. at 872.
24 Id. at 889. On this point, even the dissenting justices agreed that states could adopt more stringent recusal standards. Id. at 893 (Roberts, J., dissenting).
25 See, e.g., Williams v. Pennsylvania, 136 S. Ct. 1899 (2016); Rippo v. Baker, 137 S. Ct. 905, 907 (2017).
26 Rippo, 136 S. Ct. at 1905.
27 Williams-Yulee, 135 S. Ct. at 1667 (2016).
28 State ex rel. Two Unnamed Petitioners v. Peterson, 2015 WI 85, 363 Wis. 2d 1, 866 N.W.2d 165.
29 Def. Schmitz's Suppl. Opp’n to Pls.’ Mot. for Prelim. Inj. at 4, O’Keefe v. Schmitz, No. 14-cv-139 (E.D. Wis. Apr. 15, 2014) (unredacted version).
30 State ex rel. Two Unnamed Petitioners, 2015 WI 85, ¶ 75, 363 Wis. 2d 1.
31 See O'Keefe v. Chisholm, 769 F.3d 936, 941 (7th Cir. 2014).
34 See 52 U.S.C. § 30104 (requiring disclosure for any broadcast ad that “refers to a clearly identified federal candidate” that is “targeted to the relevant electorate,” and airs within 60 days after general election or 30 days after a primary election or nominating convention, regardless of whether the communication includes express advocacy. 52 U.S.C. § 30104(f)(3).)
35 Independence Inst. v. Federal Election Comm'n, 216 F. Supp. 3d 176, 187 (D.D.C. 2016), aff'd, 137 S. Ct. 1204 (2017).
36 Brief of the Center for Political Accountability and the Carol and Lawrence Zicklin Center for Business Ethics Research as Amici Curiae in Support of Petitioners at 4, Caperton v. A.T. Massey Coal Co., No. 08-22, 2009 WL 45977 (U.S. Jan. 5, 2009).
37 SCR 60.04(8), cmt.
38 State ex rel. Two Unnamed Petitioners,2015 WI 85, ¶ 75, 363 Wis. 2d 1.
39 SCR 60.06(4).
40 SCR 60.05 (3)(c)2.a.
41 Caperton, 556 U.S. at 889; see alsoid. at 893 (Roberts, J., dissenting); Williams-Yulee, 135 S. Ct at 1672.