CCP submits comments for judicial recusal hearing

The Center for Competitive Politics has submitted comments with the Wisconsin Supreme Court in advance of a Wednesday hearing on judicial recusal rules.

“The recent Supreme Court ruling on judicial recusal stressed its limited impact and scope,” said Center for Competitive Politics Research Director Laura Renz. “Wisconsin should not overreach by crafting recusal standards that go far beyond what the Supreme Court has required, chilling free speech in the process.”

The Center for Competitive Politics’ comments explain why recusal standards based on independent expenditures and campaign contributions will not lead to a more impartial judiciary or improve public perception of the courts. Basing recusal standards on independent expenditures is especially problematic because judges have no control over outside spending, and such guidelines could constrain citizen speech and be exploited by lawyers.

A proposal by the League of Women Voters would require automatic recusal when a party to a case has made a contribution to a media campaign relating to a judicial election, even if that campaign is independent of the candidate. The Center for Competitive Politics supports a competing proposal by the Wisconsin Realtors Association, which holds that lawful campaign contributions do not, by themselves, require recusal.

Wisconsin is one of the first states to examine its judicial recusal standards following the February Supreme Court decision in Caperton v. A.T. Massey Coal Co., which held that in an “exceptional” case, judicial recusal was mandated.

“The Supreme Court has repeatedly ruled that independent spending advocating the election or defeat of a candidate is core political speech protected by the First Amendment,” said Center for Competitive Politics President Sean Parnell. “Mandating judicial recusal based on independent speech would unconstitutionally limit the free speech rights of Wisconsin citizens.”

The Center for Competitive Politics is a nonprofit, nonpartisan organization dedicated to promoting and protecting the First Amendment political rights of speech, assembly and petition.