Fallone campaign says Roggensack flip-flopped on recusals

Supreme Court Justice Patience Roggensack has come under major attack from opponent Ed Fallone for supporting a rule that says getting a campaign contribution from a litigant is not enough by itself to force a judge to step down from a case.

Late in her re-election campaign, Roggensack for the first time said she would recuse herself anytime she received a $10,000 donation, and would consider doing so at a $1,000 threshold.

Fallone’s campaign cried flip-flop.

This is another case for our Flip-O-Meter, which we use to measure whether a political figure has changed positions. It’s not a measure of whether any change is good politics or good policy, just whether the person has been consistent.

The relevant history dates to 2008, when the high court revised its ethics rules after two campaigns that saw heavy spending by special-interest groups in Supreme Court races.

Roggensack complained of efforts to remove judges from cases and manipulate the outcome by making contributions in order to affect who could hear a case. The Wisconsin Realtors Association asked the court to establish a rule that a contribution or endorsement by itself is not enough to require recusal.

Others took a different approach. The League of Women Voters of Wisconsin asked the court to require judges to step aside in cases involving a party or an attorney who spent $1,000 or more on their election campaign.

In a 4-3 decision in 2009 supported by Roggensack, the court decided endorsements, campaign contributions and independently run ads in themselves are not enough to force a judge off of a case. The judicial ethics code still requires recusal if the judge has personal bias toward a litigant, has business ties to lawyers in a case, has a financial stake in the outcome, a relative is involved or the judge has taken a public position on the issue.

Of course, the rule did not preclude judges from voluntarily removing themselves over a donation. But Fallone complained that it would discourage litigants from making recusal motions when they are concerned about the potential effect of a donation by the other side.

Let’s look at what Roggensack said about the rule.

"It will send a message that making lawful contributions is not a dishonorable thing to do, and it's not a dishonorable thing to receive," Roggensack told reporters in 2009.

In a 2009 op-ed piece, she wrote: "If a person made a lawful campaign contribution and that caused the justice to be disqualified from deciding legal issues presented to the court, all of the other voters who chose that justice because they believed he or she was fair, independent and knowledgeable about the law would have their votes cancelled because of the justice's disqualification."

The U.S. Constitution, Roggensack wrote in 2010, protected donations.

"Money spent to communicate during an election has long been held to be an element of speech, and therefore such expenditures are protected by the First Amendment as well."

Jump ahead to 2013.

That’s when Fallone, a first-time candidate backed by many unions and liberal groups, portrayed Roggensack as having an ethics problem. He characterized the effect of the rule she supported as encouraging "legalized bribery."

When Fallone again pressed the issue during a March 8, 2013, debate on Wisconsin Public Television, Roggensack surprised the Fallone camp.

Asked by "Here and Now" moderator Frederica Freyberg how the candidates would show their freedom from the influence of campaign cash, Roggensack said: "I won’t participate if the contribution is above what I think is something that might give the public pause. You know there’s a $10,000 limit on contributions from individuals, and about $8,625 from a PAC, so my thoughts are much below that."

She brought up as a possible "good benchmark" some limits she seemed to suggest Chief Justice Shirley Abrahamson has used in the past -- $1,000 in individual donations and $8,625 from political action committees.

(Abrahamson told us through a spokeswoman that she has never based recusal decisions solely on the size of the campaign contribution. Her practice has been to take no donations from parties with cases currently before the court or pending in the court -- and to return any donations received from such parties. For donations from lawyers, she assesses each one individually, weighing a variety of factors, we were told.)

Roggensack went further March 27, 2010, on WUWM public radio’s "Lake Effect" show.

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Asked by host Mitch Teich if  "there is a threshhold for you on what point there is a conflict of interest," Roggensack said: "Certainly if somebody contributed $10,000 to my campaign, which is lawful, I would not sit on that case."

She added: "So, we’re looking at each contribution that comes in, and you know, when the chief justice ran her campaign, she had contributions of $1,000 from many people, and she never got off a case because of a contribution. Perhaps that’s something to look at. But we are looking at all of that."

Indeed, the $10,000 threshold would apply to very few, if any, donations; it is the maximum individual donation allowed by law. If Roggensack were to adopt a $1,000 test, it would apply to many more contributions. Fallone has not specified what his personal threshold would be.

We asked Roggensack campaign adviser Brandon Scholz if the justice had ever before set a donation threshold for automatically recusing herself.

No, he said, and added she has not recused herself in her 10 years on the high court based on the size of a donation.

But doing something for the first time does not a necessarily mean a flip-flop.

We know Roggensack, in supporting the rule, rejected an alternative that would have set $1,000 as a recusal threshold. And now Roggensack suggests she’s considering that same threshold for herself.

But there’s a crucial distinction: Roggensack is acting on her own in deciding when to recuse herself, while the League of Women Voters proposal she rejected would have required justices to get off a case.

She was for judges deciding on their own, and she’s still for judges deciding on their own.

We couldn’t find evidence that Roggensack ever said, prior to the 2013 campaign, that she would or would not set a personal threshold.

Even League of Women Voters Wisconsin executive director Andrea Kaminski told us, "I don’t see that she is straying from anything she said before."

So while there may be some irony here, and a political card well played by Roggensack, we don’t see a substantial change in position.

That’s our official definition of a No Flip.