Citing Unique Role of Judges, Groups Urge Court to Uphold Public Finance Law

June 17, 2011

Wisconsin Act Upholds Trust in Legal System, Justice at Stake and Brennan Center Say

Contact: Charles Hall, Justice at Stake: 202-588-9454 (office), 703-615-7642 (cell); chall@justiceatstake.org
             Erik Opsal, Brennan Center for Justice: 646-292-8356 (office), 763-234-5907 (cell); erik.opsal@nyu.edu.

JUNE 16 – Declaring that judges play a unique role in our governmental system, two nonpartisan national reform groups urged a federal appeals court today to uphold Wisconsin’s Impartial Justice Act, which provides for public financing of state Supreme Court elections.

In separate amicus briefs, the Justice at Stake Campaign and the Brennan Center for Justice said that unlike other elected officials, judges have a duty, under the Constitution’s 14th Amendment, to be impartial. Therefore, reforms to prevent the appearance of courtroom bias represent a compelling government interest.

The briefs were filed with the Seventh U.S. Circuit Court of Appeals in a case called Wisconsin Right to Life v. Brennan.

“Public financing under the Impartial Justice Act is one of the most powerful reforms shielding courts from special-interest influence,” the Justice at Stake brief said. “With public financing, judges no longer must rely on support from large-dollar, special interest contributors who frequently have cases in front of the court.”

“Judicial elections are vastly different from other contests, which is why Wisconsin’s Impartial Justice Act should be upheld in full,” said Adam Skaggs, senior counsel at the Brennan Center for Justice. “Money in the judiciary can lead to bias and erode public trust in the courts. By providing public financing for judicial candidates, we can ensure judges are accountable to the law, not big money backers.”

“Judges are supposed to follow the law, not political pressure,” said Bert Brandenburg, executive director of Justice at Stake. “Americans have a constitutional right to a fair day in court, and public financing of judicial elections helps achieve that.”

The Wisconsin Right to Life case is the latest in a series of federal lawsuits attacking campaign financing laws. But unlike Citizens United in 2010, and McComish v. Bennett, a case currently before the U.S. Supreme Court, the Wisconsin case addresses only court elections, which are the focus of growing national controversy.

In the 22 states that elect state high courts, candidate fundraising surged to $206.9 million in 2000-2009, more than double the $83.3 million raised in the previous decade. Polls show that three Americans in four believe that campaign cash affects courtroom decisions.

Lawmakers passed the Impartial Justice Act in 2009, after spending on judicial elections soared in Wisconsin in recent years. In elections in 2007 and 2008, candidates and special interest groups spent more than $8.4 million in Wisconsin, the second highest total nationally for that two-year period. 

Wisconsin Right to Life is seeking to strike down the “trigger supplemental funds” provision of the Impartial Justice Act, which grants additional money to publicly funded candidates when opponents spend above a certain limit.  Critics contend the very existence of these funds chills the speech of political players.

The Brennan Center’s amicus brief rejected the First Amendment claim, saying that “the challenged trigger provisions have not hampered anyone’s ability to participate in Wisconsin’s judicial elections—including, and especially, the Plaintiffs.” The brief was filed on behalf of Common Cause in Wisconsin, the Wisconsin Democracy Campaign, and the League of Women Voters of Wisconsin Education Fund by the Brennan Center and co-counsel Sidley Austin LLP and Stafford Rosenbaum LLP.

The Brennan brief added, “First Amendment protections for political speech must be evaluated differently in the context of judicial elections. …  Plaintiffs’ speculative and attenuated claims that the Wisconsin law has impaired their political speech must be weighed against Wisconsin’s compelling interest in using public financing to protect the integrity of its courts and assuring that they appear impartial.”

The Justice at Stake brief, which was co-signed by 23 public interest groups, cited a recent Wisconsin election, and a U.S. Supreme Court decision issued earlier this week, to buttress the groups’ arguments.

In Wisconsin’s April 2011 Supreme Court election, Justice David Prosser and challenger JoAnne Kloppenburg accepted public funding, the Justice at Stake brief noted, allowing them “to avoid the appearance of impropriety by insulating them from major donors who may appear before them in court.”  Yet the Impartial Justice Act had no chilling impact on the speech rights of outside groups, which spent a record $3.6 million on TV ads in the election, the brief said. 

The JAS brief said that the U.S. Supreme Court observed this week in Nevada Commission on Ethics v. Carrigan, a case involving recusal by public officials to avoid ethics conflicts, that judges may need different ground rules from elected officials who represent constituencies.

A ruling in the Wisconsin case also could affect public financing for court elections in North Carolina, New Mexico and West Virginia. The JAS brief warned that striking down the Wisconsin provision not only “could return judicial races to an environment of partisan political rancor,” but “these ill effects could trickle into other states” with similar systems.

The Justice at Stake brief was drafted by attorneys at Arnold & Porter LLP. For a pdf of the Justice at Stake brief, click here. For a pdf of the Brennan Center, click here.

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The Justice at Stake Campaign is a nonpartisan, nonprofit campaign working to keep America’s courts fair and impartial. Justice at Stake and its 50-plus state and national partners educate the public, and work for reforms to keep politics and special interests out of the courtroom—so judges can protect our Constitution, our rights and the Rule of law. For more about Justice at Stake, go to www.justiceatstake.org, or www.gavelgrab.org.

The Brennan Center for Justice at New York University School of Law is a nonpartisan public policy and law institute that focuses on fundamental issues of democracy and justice. The Center works on issues including judicial independence, voting rights, campaign finance reform, racial justice in criminal law and presidential power in the fight against terrorism. Part think tank, part public interest law firm, part advocacy group, the Brennan Center combines scholarship, legislative and legal advocacy, and communications to win meaningful, measurable change in the public sector. For more information, visit www.brennancenter.org.