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A Real Opportunity to Reform Judicial Ethics

Only a few states require judges to sit out cases involving their campaign contributors. The Wisconsin Supreme Court's new liberal majority has expressed support for strengthening recusal rules. Will other states follow its lead?

Janet Protasiewicz
Janet Protasiewicz, the winner of a race for a seat on the Wisconsin Supreme Court, speaks to attendees at her election night event at a Milwaukee hotel on April 4, 2023. Protasiewicz’ victory gives liberals a majority on the high court. (Angela Major/Wisconsin Public Radio)
It might seem unlikely that a state supreme court election that saw well over $40 million in spending — a record-shattering sum for a U.S. judicial race — would lead to a crackdown on conflicts of interest resulting from campaign cash in judicial elections. After all, campaign donors often expect something for their money.

While Janet Protasiewicz’ campaign for a Wisconsin Supreme Court seat raised a record $14 million, during the campaign she pledged that if elected she would sit out cases involving the state Democratic Party, her biggest donor by far in the ostensibly nonpartisan race, and she suggested that other judges should do likewise. Yet most of the national attention surrounding Protasiewicz’ landslide victory last week focused on the likelihood that the court’s new liberal majority would move to protect abortion rights and take on the state’s extreme partisan gerrymandering.

The Protasiewicz campaign highlighted these issues and dominated the airwaves with well over $10 million in spending on ads, including some that attacked her opponent, former Justice Dan Kelly, as corrupt. According to the Brennan Center for Justice, her campaign spent about 20 times more than Kelly’s on ads. But Kelly also was backed by millions of dollars in spending, primarily funded by billionaires and corporations.

When she’s sworn in to the Supreme Court, Protasiewicz will join three other members of the seven-member court who have expressed support for requiring Wisconsin judges at every level to recuse themselves from cases involving campaign donors. Justice Ann Walsh Bradley voted to adopt reform proposals in 2010 and 2017. Justices Rebecca Dallet and Jill Karofsky were elected in 2018 and 2020, respectively, after expressing support for strengthening judicial ethics rules to require recusal. If the court adopts a mandatory recusal rule, Wisconsin will be one of only half a dozen states that draw a bright line on conflicts of interest resulting from campaign cash.

For Wisconsin, that would be a full-scale reversal of the status quo. One of the state’s judicial ethics rules says that campaign cash alone shouldn’t be the sole basis for a judge’s recusal. This rule was adopted by the state Supreme Court in 2010, and it was literally written by two big-business groups that spent millions of dollars to elect the court’s conservative, pro-corporate majority. The justices rejected a proposal from the League of Women Voters to mandate recusal for campaign cash. And Kelly was on the court in 2017, when it rejected a proposal by dozens of former judges to reform the recusal rule.

Protasiewicz’ 11-point victory on April 4 is likely to change that equation. As Protasiewicz, who has served as a circuit court judge in Milwaukee since 2014, put it in a re-election interview, “Should a Supreme Court justice really sit on a case where millions of dollars of outside money have come in on your behalf? I don't think that people think that's fair. People think that that puts a thumb on the scale.” She also ran campaign ads calling Kelly “corrupt” for his handling of conflicts of interest. The ads discuss Kelly ruling several times in favor of a conservative group that had also donated to his campaign, as well as his decision to un-recuse himself in a case after receiving a campaign contribution.

Who Should Decide on Recusal?

The vast majority of Americans live in states where judges are elected, and in almost all of these states, judges are allowed to decide for themselves whether a campaign contribution creates a conflict of interest that requires recusal. Most states have adopted some version of the American Bar Association’s (ABA) model rule on “disqualification” due to conflicts of interest. This rule basically says that judges should recuse themselves if they aren’t impartial or if hearing the case would lead to the appearance of impartiality or “impropriety.”

That rule didn’t specifically address campaign donations, but in 1999, as the amount of money spent in judicial races began to rise sharply, the ABA recommended a mandatory recusal rule for cases involving campaign contributors. Despite the explosion of campaign cash in judicial races since then, only a handful of states have adopted such a rule.

Polls have shown that voters believe that money can influence judges, and the overwhelming majority want judges to avoid hearing cases involving their campaign donors. According to a 2016 report by the National Center for State Courts, however, only five states require judges to sit out cases involving their campaign donors. In recent years, Republicans in the Montana Legislature have proposed legislation requiring judges who have received campaign contributions from lawyers or litigants to recuse themselves, even for donations of less than $100. One bill was passed but subsequently blocked by a state court.

The Brennan Center for Justice found that a few states did strengthen their recusal rules after a 2009 U.S. Supreme Court ruling that a West Virginia judge had violated the U.S. Constitution by ruling on a case involving a coal mogul whose money had been pivotal to the judge’s election. These reforms addressed campaign cash but stopped short of mandating recusal for donors above a certain threshold.

The Brennan Center argues that states should also take the decision on recusal out of the hands of the judge with a potential conflict of interest. The North Carolina Supreme Court, under the leadership of then-Chief Justice Cheri Beasley in 2019 and 2020, decided as a whole whether an individual justice should sit out a case. That momentum was short-lived: In 2021, the high court’s Democratic majority was on the verge of disqualifying Republican Justice Phil Berger Jr. from hearing cases involving lawsuits filed against his father, the president pro tem of the state Senate, but the court backed down last year after months of intense pressure and impeachment threats from Republicans.

The North Carolina Supreme Court ultimately left the decision in the hands of Berger, who had decided in 2021 that he could hear the cases. This year, after a new Republican majority was sworn in, Berger decided to refer the recusal decision to the entire court, which decided he could stay on the cases.

Plenty to Clean Up in Wisconsin

Whether the new liberal majority on the Wisconsin Supreme Court will move to clean up judicial ethics — and whether such a move might spread to other states — remains to be seen, but Protasiewicz’ victory gives reform advocates hope. There’s certainly plenty to clean up after a decade and a half of scandals. In 2015, for example, the court’s conservative majority shut down a criminal campaign-finance investigation into Republican Gov. Scott Walker’s campaign coordination with corporate-funded groups that had also spent millions of dollars to get the conservative justices on the bench. They refused to recuse themselves, even though two of them were suspected by prosecutors of violating the same law with the same groups.

Trends in the court’s rulings have also raised questions. At People’s Parity Project Action, we recently released a report that illustrated how the court’s corporate-funded, conservative majority has tended to favor corporate defendants over injured workers and consumers. In the last 14 years, the court ruled for corporate defendants in nearly 60 percent of cases involving individual plaintiffs.

And the issue of questionable judicial ethics is not confined to Wisconsin’s conservative justices. In 2013, Wisconsin Watch analyzed the tendency of justices on both sides of the ideological spectrum to rule in favor of their corporate donors. The report found that “in instances where a contribution came in before a case was decided, justices favored those attorneys’ clients 59 percent of the time.”

So if Wisconsin's newly reconstituted Supreme Court is serious about ethics reform, its liberal majority will need to take a broad view. It’s clear that judicial ethics reform is popular with Wisconsin voters, who have now elected a majority of justices who say they want to crack down on conflicts of interest instead of pretending they don’t exist. Judicial candidates in other states should take note.

Governing's opinion columns reflect the views of their authors and not necessarily those of Governing's editors or management.
Billy Corriher is the state courts manager for the People's Parity Project and a writer whose work focuses on democracy and the courts.
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