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    Wisconsin Lawyer
    February 01, 2018

    As I See It
    Protecting Free Speech and Independence: Voluntary Recusal

    The Wisconsin Supreme Court has acted properly in not adopting a broad, mandatory recusal rule for judges who receive contributions from litigants.

    Richard M. Esenberg

    American flag

    Recusal can be an important tool to ensure judicial impartiality and confidence in the administration of justice. It can also be the occasion for mischief. Recusal motions can be not only a vehicle to remove a judge who cannot sit but a device for litigants to rid themselves of judges whom they wish will not sit. In State v. Allen,1 former Wisconsin Supreme Court Justice David Prosser commented on what he saw as misuse of the U.S. Supreme Court’s decision in Caperton v. A.T. Massey Coal Co.:2

    “The Caperton decision has had disastrous consequences for the Wisconsin Supreme Court. The Allen motion was filed in anticipation of Caperton, but it has been followed by nine additional recusal motions against members of this court. The Wisconsin State Public Defender’s office has invited the entire defense bar to file recusal motions against one of the justices in criminal cases. The number and savagery of these motions is unprecedented and amounts to a frontal assault on the court.”3

    Rick EsenbergRick Esenberg, Harvard 1981, is founder of the Wisconsin Institute for Law & Liberty, a nonprofit public interest law firm in Milwaukee.

    The Wisconsin Supreme Court’s approach has been to avoid rules that specify the circumstances in which recusal is required or presumptive.4 While this might be seen as inviting litigation, the court has preferred to permit judges to make a nuanced consideration of when recusal is required. Thus, it has made clear that recusal is not warranted simply because a party or its lawyer has made a lawful campaign contribution or engaged in or contributed to independent expenditures that arguably benefitted the judge or her opponent in a past election campaign.

    This is not to say that the political contributions or expenditures can never be the basis of recusal. SCR 60:04(4) calls for recusal “when the facts and circumstances the judge knows or reasonably should know establish one of the following or when reasonable, well-informed persons knowledgeable about judicial ethics standards and the justice system and aware of the facts and circumstances the judge knows or reasonably should know would reasonably question the judge's ability to be impartial….”5 Although the rule does not apply directly to candidates who are not judges, recusal rules necessarily can apply only to judges. The “facts and circumstances” that might warrant recusal could certainly arise from campaign activity.

    The supreme court has been criticized for being insufficiently stringent, but calls for aggressive recusal rules tend to ignore the costs associated with such an approach. To be sure, the supreme court has based its approach on the notion that judges can be trusted, an approach rooted in a presumption of impartiality and not of undue influence.

    But more important, the court’s more subtle approach is consistent with an elected judiciary and the public’s right to be heard regarding the candidates and issues. When recusal rules are triggered by what is sometimes euphemistically called “campaign activity” – a better word would be speech – the right of the public to be heard is burdened. In a collegial law-developing court such as the supreme court, aggressive recusal rules also deprive the public of its interest in having important cases ruled on by justices whom the voters have selected to decide them. Recusal is sometimes necessary. But when the philosophical composition of the court on a particular case changes, the public will can be frustrated.

    There is no exception to the First Amendment when it comes to electing judges. The U.S. Supreme Court has made clear that freedom of speech and association are fully protected in judicial elections. In Republican Party of Minnesota v. White,6 the Supreme Court made clear that candidate speech cannot be limited simply because it might create an appearance of “bias.”

    The court has preferred to permit judges to make a nuanced consideration of when recusal is required.

    Justice Scalia, writing for the majority, emphasized that the argument that the First Amendment ought to apply differently in judicial elections “greatly exaggerates the difference between judicial and legislative elections,” especially given the judiciary’s power to make law and set aside laws enacted by the legislature.7 He pointed out that “the notion that the special context of electioneering justifies an abridgment of the right to speak out on disputed issues sets our First Amendment jurisprudence on its head.”8

    Although White involved restrictions on what judicial candidates can say, application of the First Amendment to judicial elections implicates the Supreme Court’s doctrine on constitutional protection for spending on campaign speech. Although the public always has the right to be heard on issues affecting the law and judicial selection, electing judges requires speech and speech requires money. Contributions to candidates are subject only to exacting scrutiny and can be reasonably limited.9 It increasingly appears that independent expenditures – whether undertaken for so-called express or issue advocacy10 – cannot be limited.11 It is constitutionally permissible – in some circumstances – to treat expenditures that are in some way “coordinated” with a candidate as contributions and to regulate them as such. More on that later.

    Of course, the constitutional limitations on the regulation of campaign contributions and expenditures do not, in and of themselves, define a judge’s obligation to recuse. Lawful campaign activity can, in certain circumstances, create a potential for bias on the part of a judge such that recusal may be constitutionally required. But those situations are rare, and care must be taken to prevent recusal rules from subsuming the public’s right to participate in the electoral process.

    The Caperton Decision

    The leading case is Caperton, in which a company’s CEO spent more than $3 million in support of a candidate for the West Virginia Supreme Court of Appeals, when a very significant case involving the company was pending and certain to come before the court. The candidate later declined to recuse himself.12 The U.S. Supreme Court noted that this level of support was disproportionate to that provided by others and, in all likelihood, material to the outcome of the race. Justice Kennedy, writing for the majority, repeatedly emphasized that the facts before the Court were “rare,” “extraordinary,” and “extreme.”13

    Justice Kennedy’s caution was well-taken. Recusal rules can burden speech. Subject to concerns regarding collegial courts of fixed composition such as the Wisconsin Supreme Court, it may be true that no one may have the right to have a particular judge hear her case. But a person who is told that if she spends resources to speak in an election the judge she supports may be systematically disqualified from hearing cases in which she may be involved or perhaps even cases she cares greatly about,14 will have had her decision to speak burdened. The First Amendment prohibits not only the direct restriction of speech but the imposition of burdens as a consequence of speaking.15

    If the price of supporting a judge is that he or she will be the one judge who will never sit on an individual’s case or those of a lawyer’s clients, the price will be, for most, too high to pay.

    Hazards of Mandatory Caperton Rule

    Any attempt to transform Caperton from a case that requires recusal in only the most extreme cases to a commonplace – “objective” but also “mandatory” – obligation to step aside because the parties to a case have participated in the electoral process goes too far. It is one thing to say that a private litigant with a case currently pending before the court who spends a disproportionate amount of money to influence a race will trigger recusal. It is quite another to adopt a rule that required recusal simply because a party or a party’s lawyer had made a lawful campaign contribution or supported independent advocacy.

    Such a rule would be both radically underinclusive and overinclusive. There are many other forms of campaign activity that might be thought to influence judges. For example, the endorsement of prominent law enforcement officials – sheriffs, police chiefs, and district attorneys – are quite valuable in judicial elections. The same would be true for endorsements by local newspapers and lawyers and lawyer groups, all of which are specifically permitted by the code of judicial conduct and many of which are worth a great deal of money.

    Nor is there is any reason to ignore the risk to impartiality that might be presented by support of a judge’s unsuccessful opponent. A party who makes a maximum contribution to a judge’s opponent or an even larger contribution to issue-advocacy efforts that may have benefited that opponent is unable to force the judge’s recusal. Yet there is no reason to suppose that “gratitude” is any more a threat to impartiality than “vengeance.”

    The rule would also be radically overinclusive. A recent petition submitted by a group of retired judges called for recusal for contributions of as little as one-half the legal contribution limit. It is implausible that a judge could be “bought” so cheaply. A rule requiring recusal for garden-variety campaign contributions (or contributions for independent advocacy) is incompatible with robust public participation in our elections.

    Coordinated Contributions and Issue Advocacy

    Some might argue that recent changes in Wisconsin’s campaign finance law strengthen the case for a mandatory and aggressive recusal rule. A little history is in order. Courts have generally recognized that it may be constitutionally permissible to treat independent expenditures that are “coordinated” with a candidate as contributions to that candidate’s campaign. It is not clear that this can apply to issue advocacy – speech that does not expressly call for the election or defeat of a candidate.

    The ability of the public to discuss issues and candidates is at the heart of the First Amendment. The U.S. Supreme Court’s historic refusal to subject contribution limits to strict scrutiny has rested, at least in part, on the fact that persons who are limited in their ability to contribute to candidates are otherwise free to “discuss candidates and issues,” that is, engage in issue advocacy.16 The unfettered ability to spend money to speak is an important “escape valve” that permits less exacting scrutiny of limitations on contributions.17

    The right to petition and communicate with candidates and elected officials, moreover, cautions against an overly broad concept of “coordination.” Citizens who advocate on issues – even legal issues – will often have communicated with elected officials and candidates on those issues. So even if it is constitutionally permissible to treat coordinated communications as contributions, care would have to be taken to clearly and narrowly define the conduct that constitutes coordination and the content and nature of communications that might be considered contributions if coordinated.

    Wisconsin Campaign Finance Law

    Such careful delineation of coordinated communications is not self-executing and Wisconsin has never had it. Before the recent campaign finance reform, Wisconsin law expressly prohibited coordination only with respect to express advocacy.18 Some argued –through a rather complicated piece of interpretive legerdemain that is beyond the scope of this article – that any expenditure became subject to the law if undertaken for what the law defined as a “political purpose.” In other words, anything done for the purpose of influencing an election could be considered a contribution if coordinated with a candidate.

    But it was clear since the U.S. Supreme Court’s decision in FEC v. Wisconsin Right to Life19 that this definition – and therefore the scope of Wisconsin’s law – was unconstitutional. The Seventh Circuit confirmed this in Barland v. Government Accountability Board,20 adopting a savings construction that limited the scope of the law to express advocacy.21 The Wisconsin Supreme Court in State ex rel. Two Unnamed Petitioners v. Peterson22 essentially reached the same conclusion. Rather than being an anomaly, the court’s Peterson decision, in the context of Wisconsin’s statute, was completely predictable and compelled by federal precedent.

    In reframing Wisconsin’s law, the legislature chose not to treat coordinated independent expenditures for issue advocacy as contributions. It determined that citizens who speak on issues are free to discuss their advocacy with elected officials. Of course, the Wisconsin Supreme Court is not bound by legislative policy judgments. Perhaps a more stringent approach is warranted for judges and candidates for judicial office, who do not discuss cases with the public in the same way that legislators or executive officers discuss public policy with their constituents.

    A rule requiring recusal for garden-variety campaign contributions (or contributions for independent advocacy) is incompatible with robust public participation in our elections.

    But that hardly warrants a mandatory recusal law predicated on the speech activity of litigants. The Wisconsin Supreme Court could simply adopt a rule forbidding candidates for judicial office from coordinating with independent advocacy groups. But should it choose to do so, the conduct that constitutes coordination and the content of communications that might be considered coordinated would have to be adequately defined.

    For example, imagine that the American Constitution Society and the Federalist Society decide to engage in a public advocacy campaign during an election in which they discuss questions of judicial philosophy and law in the context of that election. A properly framed coordination rule would not make that effort a “contribution” to the campaign of a candidate who is said to benefit from it simply because the effort itself or issues discussed as part of it have been discussed with the candidates.

    Some critics have argued that because issue advocacy is not subject to disclosure laws, litigants will not know when to move for recusal. But issue advocacy by I.R.C. § 501(c)(4) organizations has never been subject to disclosure, and an appropriately narrow rule forbidding coordination by judicial candidates would render disclosure unnecessary.


    Judicial elections inevitably involve balancing independence from untoward public pressure with the accountability to the public that elections provide. Aggressive recusal rules would address the inevitable tension by burdening public participation. This is an area that requires subtlety and nuance. The Wisconsin Supreme Court, in declining to endorse easy answers, has taken the better course.


    1 129 S. Ct. 2252 (2009).

    2 See also Justice Prosser’s profile piece in the July 2016 edition of the Wisconsin Lawyer, in which he noted, “The math is very simple. If you think philosophically that someone is not going to vote for you, can you find a way to get rid of them? Because if you get rid of them, nobody is going to take their place. So it has become a strategy to try and force a justice off a case. And it’s deplorable.”

    3 SCR 60.04(4)-(8).

    4 2010 WI 10, ¶ 255, 322 Wis. 2d 372, 778 N.W.2d 863.

    5 See also Wis. Stat. § 757.19(2)(g) (recusal required “[w]hen a judge determines that, for any reason, he or she cannot, or it appears he or she cannot, act in an impartial manner”).

    6 536 U.S. 765 (2002).

    7 Id. at 784.

    8 Id. at 781.

    9 Id.

    10 Id.

    11 Id.

    12 Id. at 2257.

    13 See, e.g., id. at 2256, 2263, 2265-66, 2267.

    14 The latter would be true if parties or lawyers contributed to advocacy organizations that later become litigants.

    15 FEC v. Davis, 554 U.S. 724 (2008) (striking down law that raised contribution limits for candidates whose opponents had self-funded in excess of specified amount because it impermissibly burdened that candidate’s right to expend resources on own campaign). See, e.g., Duwe v. Alexander, 490 F. Supp. 2d 968, 977 (W.D. Wis. 2007) (“While it is true that the recusal requirement is not a direct regulation of speech, the chilling effect on judicial candidates is likely to be the same. Although a candidate would not fear immediate repercussions from the speech, the candidate would be equally dissuaded from speaking by the knowledge that recusal would be mandated in any case raising an issue on which he or she announced a position”).

    16 Buckley v. Valeo, 424 U.S. 1, 21 (1976).

    17 Bradley A. Smith, Super PACs and the Role of “Coordination” in Campaign Finance Law, 49 Willamette L. Rev. 603, 612 (2013).

    18 Wis. Stat. section 11.06(7) requires committees that engage in express advocacy to file an “oath for independent disbursements,” affirming that they do not act “in cooperation or consultation” or “in concert with or at the request or suggestion of” a candidate.

    19 551 U.S. 449, 467-69 (2007) (holding that “intent-based” definition for what can and cannot be regulated is unconstitutionally vague and overbroad).

    20 751 F.3d 804, 827 (2014).

    21 Nor did it contain a constitutionally adequate definition – or really any definition at all – of what coordination was and when and where it applied.

    22 2015 WI 85, ¶ 48, 363 Wis. 2d 1, 866 N.W.2d 165.

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