Sheldon Whitehouse Wants to Prevent Justice Barrett from Protecting Free Speech

T he Senate’s leading conspiracy theorist, Sheldon Whitehouse, is at it again in his desperate campaign to delegitimize and intimidate the independent judiciary out of protecting constitutional liberties. This time, he’s after Justice Amy Coney Barrett over a free-speech case that will be argued Monday before the Supreme Court. Whitehouse has written a letter demanding that Justice Barrett recuse herself from the case because one of the parties is related to another organization that supported Barrett’s confirmation. Whitehouse’s argument is weak, inconsistent, and unsupported by precedent, and it ignores the context of the case itself.

The case is Americans for Prosperity Foundation v. Rodriquez. It involves important First Amendment questions about the confidentiality of donors to nonprofit organizations. The defendant is the California attorney general’s office. A broad coalition of groups has urged the Court to find that a policy pursued by Kamala Harris and Xavier Becerra while running that office violated the free-speech rights not only of conservative groups but of organizations across the political spectrum.

Specifically at issue is the California AG’s policy and practice of demanding lists of all donors to 501(c)(3) nonprofits (i.e., nonprofits not legally permitted to directly engage in elections) while doing little to secure the confidentiality of that information. The trial court found that the AG’s registry was “an open door for hackers,” that it allowed the release of information to researchers, and that it led to multiple inadvertent disclosures. In today’s superheated political climate, this is a serious threat to the ability of groups engaging with controversial issues to attract donors.

The behavior of Harris, Becerra, and their office was so egregious that many briefs in the case slammed their misconduct and the threat it poses for free speech — not only briefs by conservative and libertarian groups but also by a coalition of left-wing groups including the ACLU, PETA, and even the Biden-Harris administration itself. The Court is actually hearing two lawsuits consolidated for briefing and argument: one brought by Americans for Prosperity Foundation (AFPF), the other brought by the Thomas More Law Center.

In short, while AFPF is the lead plaintiff in the case, the issue in the case is much broader and affects a lot more organizations. Chinese dissident groups, for example, have begged the Court to give more protection to their donors, who face severe repercussions if their identities are discovered by the Chinese government. AFPF, for its part, is pursuing the case on principle — and because it affects interests it shares in common with many other groups that disagree with its policy stances — rather than for its own bottom-line interests. Even if AFPF’s case were to be deadlocked because one justice could not participate, the separate case by the Thomas More Law Center would go forward anyway. Yet Whitehouse does not mention the Thomas More Law Center case, because he has no plausible theory for why Justice Barrett would need to recuse from that case.

Flimsy partisan recusal demands have become a drearily common thing, deployed previously against Justice Clarence Thomas, Justice Brett Kavanaugh, and Barrett herself. Whitehouse’s theory of why Barrett should recuse herself from AFPF’s case is that Americans for Prosperity — the 501(c)(4) political-advocacy arm that is separate from AFPF, but similarly funded by Charles Koch — spent around a million dollars on a public campaign to promote Barrett’s confirmation in the fall of 2020. Some sense of the weakness of this argument can be gleaned from the fact that Whitehouse was able to get just two other Democrats (Connecticut senator Richard Blumenthal and Georgia congressman Hank Johnson, not exactly the brightest lights in Congress) to co-sign his letter.

Whitehouse’s argument is built around the Court’s 2009 decision in Caperton v. A. T. Massey Coal Co., which held that the due-process clause was violated by a West Virginia judge’s partiality in hearing an appeal after Don Blankenship (of “Cocaine Mitch” fame), the chairman and CEO of the company appealing the verdict, spent $3 million to get the judge elected while the appeal was pending. The Court in Caperton concluded that a judge may need to recuse himself when “there is a serious risk of actual bias . . . when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case.”

Caperton, however, was an extraordinary fact pattern — an “extreme case,” as the Court itself acknowledged in deciding it. First, the case involved an appeal from a $50 million damages verdict against Blankenship’s coal company. Thus, the case was mostly of interest to a single party’s financial interests. That is quite unlike the case here: AFPF is not asking for damages, or indeed for any relief that is particular to its own interests, but rather seeks to end an unconstitutional practice that affects many other organizations across the ideological spectrum.

Second, the Court in Caperton focused not just on Blankenship’s campaign contributions (both directly to the elected judge and toward advocacy of the judge’s election), but also to the disproportionate size of Blankenship’s campaign spending relative to the total amount spent in the election:

Not every campaign contribution by a litigant or attorney creates a probability of bias that requires a judge’s recusal, but this is an exceptional case . . . The inquiry centers on the contribution’s relative size in comparison to the total amount of money contributed to the campaign, the total amount spent in the election, and the apparent effect such contribution had on the outcome of the election.

. . . Blankenship’s campaign efforts had a significant and disproportionate influence in placing Justice Benjamin on the case…His contributions eclipsed the total amount spent by all other Benjamin supporters and exceeded by 300% the amount spent by Benjamin’s campaign committee . . . Blankenship spent $1 million more than the total amount spent by the campaign committees of both candidates combined.

Whitehouse’s letter is conspicuously silent on how AFP’s spending stacked up against others’ in the Barrett nomination battle. There is a reason for that. He cites a report in The Hill saying that AFP was spending “in the seven figures. In 2018, it launched a seven-figure effort for Kavanaugh’s confirmation.” (Whitehouse has not asked for Kavanaugh’s recusal here.) But there were bigger spenders than AFP, on both the pro- and anti-Barrett sides:

The conservative Judicial Crisis Network . . . kicked off a $3 million ad buy in battleground states, part of a $10 million campaign in support of her nomination, the same amount it spent in 2018. The progressive group Demand Justice, however, is doubling its $5 million ad buys from the last fight, pledging to spend $10 million this time around.

Demand Justice, of course, is a Whitehouse ally, which frequently issues statements supporting and echoing Whitehouse’s various ramblings about the courts. So, its money is good, you see. More broadly, Whitehouse’s crusade against so-called “dark money” — which extends to various proposals for Congress to legislate more restrictions on political speech — has been notoriously selective. In early March, he held a hearing to denounce organizations that do not disclose all their donors, yet every single one of his progressive witnesses was affiliated with a left-leaning group that does not disclose all its donors. As Scott Walter, a witness called by Republican senators, testified about the “Captured Courts” report that Whitehouse and his cronies at Demand Justice wave around as proof of improper conservative spending on judicial issues:

Demand Justice is a fiscally sponsored project of the Sixteen Thirty Fund, itself but one in-house nonprofit in the vast empire of “dark money” controlled by the for-profit Arabella Advisors LLC, which wields far more money and more front groups than Captured Courts’ targets. The Arabella empire behind Demand Justice is barely known, despite its immense size and influence. Captured Courts repeatedly cites its targets’ $250 million in revenues from 2014- 2017; over the same years, Arabella’s nonprofits raised $1.5 billion. In the 2018 election cycle alone, those nonprofits raised $1.2 billion, or more than double the funds raised by the DNC and RNC combined.

If Sheldon Whitehouse’s argument were taken seriously as a principle, any advocacy group of any ideological stripe that engages in Supreme Court confirmation battles would find the bench empty when they went to court. But Whitehouse does not intend that his argument be taken as a non-ideological principle, just as a partisan weapon against one side. To Whitehouse, conservative and libertarian groups that do not disclose their donors are an existential threat to the Republic; liberal and progressive groups that do not disclose their donors are just a thing that polite people do not mention. One could hardly ask for a clearer contrast with AFPF, which is litigating to defend the rights of organizations across the political spectrum to make their voices heard in the public square without harassment or intimidation of their donors.

The hollowness of Whitehouse’s rhetoric can even be seen in his own amicus brief in Americans for Prosperity Foundation v. Rodriquez, in which he rails against the groups filing amicus briefs as “billionaires, massive trade associations and giant corporations seeking maximal constitutional shelter from public criticism for their quintessentially public acts of influencing public debate and public policy” — an unusual way to describe Chinese dissidents, orders of Franciscan nuns, the NAACP Legal Defense and Education Fund, the Knight First Amendment Institute at Columbia University, or the Human Rights Campaign, among many others. As usual, Whitehouse addresses the ideological and organizational diversity of that coalition by simply pretending it does not exist.

Notably, Whitehouse has not asked Barrett to recuse herself from the many cases in which AFPF appears to advocate on other issues. In Terry v. United States, for example, AFPF submitted an amicus brief supporting the First Step Act’s provisions for sentencing relief for low-level crack offenders. In Taylor v. Rojas, AFPF joined a cross-ideological group siding with plaintiffs in a Section 1983 qualified-immunity case. In Gatewood v. United States, AFPF filed an amicus brief supporting habeas corpus relief from unconstitutional criminal sentences. Again, AFPF is fine by Whitehouse when it is an ally of liberal or progressive causes, and an enemy only when it is on the other side.

There is simply no principle at work here. Justice Barrett should not recuse herself from Americans for Prosperity Foundation v. Rodriquez. To the contrary, she should take from Sheldon Whitehouse’s selective attack on donors the importance of the Court giving broad and equal protection to advocates and donors on all sides of the political spectrum, so that everyone can be heard without the efforts of people such as Sheldon Whitehouse to silence them. The day may come sooner than later when the left-leaning groups that have sided with AFPF are grateful that Justice Barrett stayed on this case.