Current recusal rules lag behind most states, leading to conflicts of interest; recent history highlights importance of amending state recusal rules

WASHINGTON – Today, the Campaign Legal Center sent a letter to the Wisconsin Supreme Court supporting a petition by 54 retired state judges urging the adoption of rules requiring that judges step aside from cases involving their top campaign supporters.

“The U.S. Supreme Court has repeatedly emphasized that the constitution requires that judges recuse themselves from cases where there is a significant risk of bias or its appearance, even in the absence of actual bias,” said Brendan Fischer, federal and FEC reform program director at the Campaign Legal Center. “Wisconsin rules fall short of express U.S. Supreme Court guidance on recusal and puts Wisconsin behind the majority of other states in protecting the integrity of the judiciary.“

In 2009, the U.S. Supreme Court held in Caperton v. Masey (2009) that the constitution required that a state judge step aside from a case involving a company whose CEO had spent $3 million helping elect the justice through issue advocacy communications and independent expenditures. In several cases in the years since Caperton, the Court has repeatedly reaffirmed this holding and the broader importance of preserving the reality and appearance of judicial integrity.

Additionally, the importance of clear, objective recusal rules has become more pointed in light of recent changes to Wisconsin law that allow judicial candidates to control or otherwise coordinate with third-party groups engaged in “issue advocacy communications”—electoral ads that omit terms like “vote for” or “vote against” – which are the dominant form of electoral advocacy in Wisconsin Supreme Court elections. An individual is limited in how much they may give directly to a judicial candidate, and must have their contribution disclosed, but a person may secretly donate unlimited amounts to an issue advocacy group working directly with that candidate.

“While the U.S. Supreme Court in Caperton addressed significant independent spending that benefitted the justice in that case, Wisconsin’s new law permits a judicial candidate to control similar expenditures,” said Fischer. “At a minimum, the Court must revisit its recusal rules because the current standards were drafted with the understanding that issue advocacy communications would be independent of a judicial candidate, and this is no longer the case.”

Read our letter

DURHAM, N.C. – In a unanimous ruling, a three judge panel in North Carolina in the U.S. District Court for the Middle District of North Carolina denied a request by defendants to dismiss League of Women Voters of North Carolina v. Rucho.  The case was initially filed in September 2016 claiming that partisan gerrymandering in North Carolina’s 2016 congressional redistricting plan violates the First and Fourteenth Amendments of the U.S. Constitution.

“We are inching closer to North Carolinians having their day in court,” said Ruth Greenwood, deputy director of redistricting at the Campaign Legal Center. “Voters should be able to choose their representatives, yet in North Carolina and other states across the nation, politicians are manipulating maps to choose their voters and stay in power. North Carolina’s map is an egregious partisan gerrymander that prevents voters from having their voices heard on policy decisions that directly impact their lives. Through this litigation, we hope to advance a legal theory we believe can stop this unconstitutional practice nationwide, and return democracy to the people.”

The trial in the case is set to begin on June 26, 2017, in Greensboro, N.C.

“On behalf of our clients and the voters of North Carolina, we are happy that this case will now proceed to an examination of the evidence and the merits of our claims,” said Anita Earls, executive director of the Southern Coalition for Social Justice. “Our clients want to see government returned to rule by the will of the people instead of a system plagued by partisan manipulation.”

The lawsuit as filed in September 2016 can be found here.

WASHINGTON – The Campaign Legal Center and Common Cause filed a complaint with the Federal Election Commission alleging Donald Trump’s campaign committee violated federal election law by illegally accepting campaign contributions after Election Day and falsely reporting those contributions for “debt retirement,” even though no debt existed. These false reports could have the effect of illegally increasing the amount Trump could accept from contributors for his 2020 reelection campaign.

Trump began to fundraise just days after his Nov. 8 victory. Federal law provides that a candidate may only raise funds after Election Day to retire outstanding debts from the election, or for a future election. But the Trump campaign ended the 2016 election with no outstanding net debt—therefore, all contributions made after Election Day should have either been refunded to contributors or designated for the 2020 primary election.  

Yet instead, Trump reported the entirety of the funds raised to 2016 debt retirement—even though no such debt existed.

“By falsely reporting post-election contributions as being for 2016 debt retirement, Trump may be trying to illegally double what a contributor can give for the 2020 primaries,” said Larry Noble, general counsel of the Campaign Legal Center. “An individual who  gave the maximum contribution and had it attributed to 2016 debt retirement might think they can give an additional contribution and have it attributed to the 2020 primary, even though the entirety of both contributions would be used for 2020.”

Additionally, the complaint alleges, Trump violated the law by failing to timely register as a 2020 candidate. A person becomes a “candidate” when they raise more than $5,000 for an election – a threshold Trump crossed soon after he began fundraising in early November – and after becoming a candidate must register a campaign committee within 15 days. Trump waited more than two months and didn’t register until Inauguration Day, Jan. 20.

“In the rush to cash in on an unexpected election victory, the Trump campaign began raising and misreporting millions of dollars in campaign contributions more than two months before Trump was even sworn into office,” said Paul S. Ryan, vice president of policy and litigation at Common Cause.  “Campaign finance laws still apply even after you win the presidency and these transgressions, like the President’s refusal to release his taxes or separate himself from his business interests, hammer home the point that Trump’s campaign promise to drain the swamp in Washington was nothing more than lip service.”