Can You Buy Justice? In Wisconsin, It Appears You Can

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U.S. Republican presidential candidate and Wisconsin Governor Scott Walker listens to a question at a campaign stop in Cedar Rapids, Iowa, United States, July 17, 2015. The Wisconsin Supreme Court ordered an end to an investigation into whether Walker’s 2012 re-election campaign illegally “coordinated” with groups running ads on his behalf, subjecting the court to criticism over a conflict of interest. Jim Young/Reuters

The Wisconsin Supreme Court is facing harsh criticism for a blatant conflict of interest in a July 16 ruling to shut down a campaign finance investigation of Gov. Scott Walker’s 2012 re-election campaign.

One headline referred to the court as a “crony court.” A Wisconsin columnist called the justices “self-serving” and concluded, “Justice bought is justice denied.”

Why? The justices in the majority have benefited from $10 million in spending by the same special interest groups that were suspected of conspiring with Walker.

The court’s ruling explicitly ordered an end to the investigation into whether Walker’s campaign illegally “coordinated” with groups running ads on his behalf, including Wisconsin Manufacturers & Commerce (WMC).

The court ruled that the Walker campaign’s activities were not coordination, because the ads did not explicitly say to vote for the governor. The ads were deemed “issue ads” that merely praised Walker for his record as governor, just before the election. The court ruled that banning coordination for issue ads would violate the First Amendment.

Prosecutors should appeal the Wisconsin Supreme Court’s decision. The U.S. Supreme Court, by hearing this case, could help protect the integrity of the judiciary in Wisconsin and other states with elected judges. Prosecutors have a strong argument that the Wisconsin justices had an unconstitutional conflict of interest. In addition to the multimillion-dollar ad campaigns for the justices, the prosecutors described “close connections” between WMC and two of their campaigns.

In 2009, the U.S. Supreme Court ruled in Caperton v. AT Massey Coal Co. Inc. that a litigant’s constitutional rights were violated when the opposing party spent $3 million to elect a judge hearing the case. The court held that certain objective circumstances simply do not allow a judge to decide a case—regardless of how genuine the judge is in remaining unbiased. The court deemed “the probability of actual bias…too high to be constitutionally tolerable.”

A few state supreme courts adopted the Caperton standard. Pennsylvania, for example, now requires recusal when the amount of campaign cash “would raise a reasonable concern about the fairness or impartiality of the judge’s consideration.”

The Wisconsin Supreme Court in 2010 received two petitions for revisions to its recusal rule, one from the League of Women Voters and another from WMC and its ally. The court adopted WMC’s proposal, which says that campaign cash can never be the sole basis for a judge’s recusal.

Caperton has not yet been applied by any lower court to require recusal. But if the decision means anything, it must apply to the Wisconsin decision. When the court recently upheld a Florida rule barring judicial candidates from personally soliciting campaign cash, Chief Justice John Roberts’s opinion said that “the public may lack confidence in a judge’s ability to administer justice without fear or favor if he comes to office by asking for favors.”

WMC and its allies spent millions to elect the judges hearing its case. These groups have dominated judicial races in Wisconsin. The close ties between the justices and the groups certainly present an even higher “risk of actual bias” than the money in Caperton—a greater threat to the court’s legitimacy.

There is one difference between the two cases. In Caperton, the litigant spent big on a West Virginia Supreme Court race while facing a lawsuit in state court. WMC was spending millions of dollars in judicial races long before Walker’s 2012 re-election campaign. After a flood of money from WMC and its corporate donors, the new conservative majority began ruling more often for corporate defendants.

But if the group consulted any election lawyers when working with political campaigns, it also must have been aware that state courts had interpreted coordination to include working with campaigns on some election ads that did not explicitly tell viewers how to vote.

WMC also knew the Wisconsin Supreme Court has the final say on how coordination is defined under state campaign finance law. Thanks to WMC’s rule on recusal, the justices did not have to recuse themselves from hearing the case.

It is hard to imagine a more egregious conflict of interest. The justice’s refusal to recuse themselves—or to even respond to the prosecutor’s request—will undermine the legitimacy of the Wisconsin Supreme Court and elected courts around the country.

The U.S. Supreme Court could stop this erosion of confidence by reviewing this case. The people of Wisconsin deserve to have their campaign finance laws interpreted and enforced by judges who do not appear to be so heavily influenced by corporate campaign cash.

Billy Corriher is director of research at Legal Progress, and Maya Efrati is a law clerk at Legal Progress and a student at the University of Michigan Law School.