"You can buy Supreme Court races" under the current system, said Rep. Pedro Colón (D-Milwaukee). "The sign is outside: 'This court is for sale.'" (from an article in the Milwaukee Journal Sentinel [1] last week)

Nobody wants this to be said, at least nobody but four of the seven Wisconsin Supreme Court justices, according to another article in the Journal Sentinel [2]. On October 28, the Supreme Court rejected, 4-3, a League of Women Voters petition to require justices to recuse themselves from a case involving a person or entity that had, in the past two years, contributed over $1,000 to their campaigns. By the same vote they accepted a petition written by the Wisconsin Realtors Association and Wisconsin Manufacturers & Commerce (the state chamber of commerce).

The state's longstanding ethics code for justices requires them to recuse themselves if their impartiality can reasonably be questioned. The new rule says that campaign contributions or endorsements alone are not enough to require recusal. In other words, a Supreme Court justice doesn't have to withdraw from a case involving an individual or entity that gave his or her campaign a thousand dollars or a million dollars.

It's easy to see why the League of Women Voters would petition the Supreme Court for better judicial ethics. But why would the states' realtor and business associations petition the Court for worse judicial ethics?

The reason isn't some theoretical policy difference. The associations have hard, selfish reasons for undermining Wisconsin's judicial ethics.

In 2007 one of the justices, who received $8,625 from the realtors association, was asked to recuse herself by the other party to a case involving the association. The justice did recuse herself, the Court split 3-3, the case went back to the appellate court, and it ruled against the realtors. The realtors don't want this to happen again.

A few months later, the same justice did not recuse herself in a case that involved hundreds of millions of dollars in business tax refunds, despite the fact that, only a year before, the chamber of commerce had spent $2 million to help her get elected. This time, the Court split 4-3, and the businesses won big-time. The chamber wants to make sure this happens again.

According to an op-ed piece [3] in the Janesville (WI) Gazette, the chamber spent at least $1.8 million to help another Supreme Court justice get elected.

And yet both justices voted on the chamber's petition, and both voted for it and against the League of Women Voters'. In other words, on the question of recusal on the basis of campaign contributions, at least two justices acted as if the vote had already been taken, so that in the future they could continue to get multi-million dollar contributions and expenditures. So much, once again, for self-regulation, even by Supreme Court justices.

Fortunately, the Wisconsin legislature recognized how horrible this was. Days later, the legislature passed a public financing bill for Supreme Court elections, according to an article in the Journal Sentinel [1]. It sounds like a good program, but it may be an uphill battle getting justices to participate and keeping groups such as the chamber from independently supporting candidates to such an extent, it would break the program by making it too expensive and, therefore, too unpopular with voters.

Some people are calling for appointing rather than elected Supreme Court justices in Wisconsin. That seems to be the best solution. It's too important that Supreme Court decisions not be compromised by apparent conflicts of interest.

Robert Wechsler
Director of Research, City Ethics

203-230-2548