Backers of a proposal to require justices to step off cases if the parties involved donated $10,000 or more in their races argued it would increase the public’s confidence in the court through transparency and accountability.

But a WisPolitics.com check found no individual donations of $10,000 or more in recent years that would have triggered the proposed rule, which the court’s conservative majority shot down.

And those on both sides of the proposal debate how effective the requirement would have been in targeting outside spending that has come to dominate Supreme Court campaigns. That’s because campaign finance laws don’t require groups active in the most recent Supreme Court elections to disclose their donors.

For example, the conservative Wisconsin Alliance for Reform and liberal Greater Wisconsin Committee spent about $2.6 million and $710,000, respectively, to influence the 2016 Supreme Court race in which Justice Rebecca Bradley defeated challenger Joanne Kloppenburg, according to the Wisconsin Democracy Campaign. But neither outside group donated to the campaigns directly, and since they don’t disclose their donations, it’s difficult to match up the group’s donors with those that appear in the courtroom.

Janine Geske, a former Supreme Court justice and one of the backers of the recusal rules, said the rules still would’ve required each party’s lawyer ensure their clients reported donations that met the threshold via an affidavit to the court, although opponents say such a requirement would have likely faced legal challenges.

Still, she said, that requirement showed that donors to issue groups would have an “obligation” to report those numbers before the court.

“If you have given those kind of contributions, you have an obligation to do that disclosure, because otherwise you wouldn’t get to those numbers,” she said.

But Rick Esenberg, president of the Wisconsin Institute for Law and Liberty and an opponent of the rule, said that process could have deterred individuals’ and issue organizations’ participation in issue advocacy.

“This would be a real burden on freedom of speech or association,” he said.

The WisPolitics.com check of court records and individual campaign donations included all attorneys and litigants who appeared before the court in oral arguments between January 2013 and April 2017. That list was then checked against those who had donated to Supreme Court campaigns between July 2007 and December 2009 and January 2012 to April 2017.

Those years covered the campaigns of six of the seven current Supreme Court justices: Annette Ziegler, who ran unopposed this spring; Rebecca Bradley, who won retention in 2016; Ann Walsh Bradley, was re-elected in 2015; Patience Roggensack, who won a second term on the high court in 2013; Shirley Abrahamson, who defended her seat in 2009; and Michael Gableman, who upset incumbent Justice Louis Butler in 2008.

The remaining justice, Daniel Kelly, was appointed to the court by Gov. Scott Walker in 2016 to fill former Justice David Prosser’s seat, and wouldn’t face an election until 2020, if he decides to run.

The check showed that over the period reviewed, 87 individuals or groups donated $10,000 or more to Supreme Court campaigns. But none was involved in cases that came before the court in the last four years, or they contributed to losing candidates.

In all, when looking at those who participated in oral arguments over the period, the highest combined donation from a litigant was $500, while the highest for attorneys involved in a case was $2,500. Those are well below the $10,000 threshold in the proposed rule.

The justices on the receiving end of those $2,500 contributions — Abrahamson and Ann Walsh Bradley — supported adopting the recusal rules.

Steven Lucareli contributed in $250 in December 2008 and March 2009 to Abrahamson’s campaign. He was a party in a case that court heard in February 2016. Abrahamson participated in that case.

Meanwhile, one of the two $2,500 contributions from lawyers came from Peter Earle, who served as an attorney for Voces De La Frontera in a case that closed in February. Earle’s two donations to Ann Walsh Bradley, who stayed on the case, were $1,000 in December 2014 and $1,500 in January 2015.

The other attorney giving $2,500 was Robert Jaskulski, who served as an attorney in a separate case that closed in June 2014. He had also filed an amicus brief in an October 2013 oral argument. But the proposed rule did not cover amicus briefs.

Jaskulski’s donations included $1,000 to Abrahamson’s campaign in October 2008, as well as three $500 donations to her between January and April 2009. Abrahamson participated in both of those cases.

Under the rule, if the donation of $10,000 or more was made during the justice’s current or previous term, the justice would have to recuse from the case.

Tracking big-dollar donors

The $10,000 recusal rule also would’ve applied to contributions individuals made to third-party groups “with the intention or reasonable expectation” the group would then make an independent expenditure influencing a Supreme Court race.

But those groups aren’t required to disclose the names of individuals who financially back their advocacy efforts.

Geske, the former state Supreme Court justice, acknowledged much of the largest spending in those races comes from those outside groups and isn’t easily trackable. But she said the petition tried to get at those big-dollar donations by requiring parties to file an affidavit showing any contributions of more than $250 made to such groups.

She argued that would have captured donations to groups like the Greater Wisconsin Committee and the Wisconsin Alliance for Reform.

“The rule declares an affidavit, which means you’re lying under oath, which is a crime,” Geske said of those who fail to disclose a donation. “You can’t build a rule and say well it’s not going to work because people are going to engage in criminal behavior, because that’s always a problem.”

Still, WILL’s Esenberg said since current campaign finance laws and disclosure rules do not require groups engaged in issue advocacy to disclose their donors, the $250 affidavit requirement “would be particularly likely to be challenged” in court.

Meanwhile, some who backed the recusal rule have pointed to the role of Wisconsin Manufacturers & Commerce in trying to make their case a recusal threshold is needed. According to the Wisconsin Democracy Campaign, the group spent $5.6 million between the 2007, 2008, 2011 and 2013 Supreme Court races.

But the WisPolitics.com check did not turn up any cases during the four-year period in which the business group or its top officials were listed as parties to a case the court heard.