Prosser recuses self from campaign case

John O'Brien Sep. 2, 2011, 12:32pm


MADISON, Wis. (Legal Newsline) - Wisconsin Supreme Court Justice David Prosser has changed his mind and recused himself from a case involving campaign-finance regulations.

Prosser notified fellow justices and the parties in Wisconsin Prosperity Network v. Myse on Friday. Prosser's attorney during a recount of his re-election vote is representing Tea Party groups challenging the regulations.

In August, Prosser had indicated that he would not recuse himself from the case. In a letter, Prosser said he has "no bias or prejudice against any party or party's attorney in this case and a favorable view of multiple attorneys on different sides of the case."

Last July, the Government Accountability Board, which is charged with oversight of the state's campaign finance, elections, ethics and lobbying laws, issued a new administrative rule regarding campaign advertisements.

The rule, the GAB explained, uses a common-sense test in determining whether an ad has a political purpose and is subject to statutory disclosure and disclaimer requirements.

An ad is considered to have a political purpose if it is "susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate."

If an ad meets these and other specific criteria, it is then subject to the applicable campaign finance regulations and requirements in Chapter 11 of Wisconsin Statutes.

Previously, a campaign ad had to expressly advocate the election, defeat, recall or retention of a clearly identified candidate. Express advocacy was defined by the use of certain "magic words" or their functional equivalents for it to be subject to campaign finance laws requiring disclosure of who paid for the ad.

However, those rules led to numerous campaign ads by independent groups that skirted regulation by avoiding the use of certain words, such as "vote for" and "vote against."

Several groups challenged the rule in two federal lawsuits. Other organizations and individuals, including Wisconsin Prosperity Inc., filed a challenge in the state Supreme Court. They argued the rule violated the First Amendment.

The federal lawsuits were stayed pending a ruling by the state's high court. Last August, the Court granted a temporary injunction barring enforcement of the rule to "preserve the status quo."

The Court has scheduled oral arguments in the case for Tuesday.

A special prosecutor recently announced that Prosser would not face criminal charges over an alleged attack of Justice Ann Walsh Bradley.

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