U.S. Supreme Court

3 Democratic lawmakers call on Barrett to recuse herself in donor disclosure case

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Three Democratic lawmakers are asking U.S. Supreme Court Justice Amy Coney Barrett to recuse herself in a First Amendment dispute because a group related to a plaintiff launched a seven-figure ad campaign in support of Barrett's Supreme Court confirmation.

The plaintiffs in the consolidated Supreme Court cases are two conservative groups that are challenging a California requirement for charities to disclose names and addresses of major donors. One of the plaintiffs is the Americans for Prosperity Foundation.

The foundation is the nonprofit arm of the Koch family’s political advocacy group Americans for Prosperity, according to the letter to Barrett signed by Sen. Sheldon Whitehouse of Rhode Island, Sen. Richard Blumenthal of Connecticut and U.S. Rep. Hank Johnson of Georgia. Americans for Prosperity announced its campaign to confirm Barrett just minutes after her nomination, the letter says.

A press release is here; Law360 and USA Today have coverage.

“Statute, constitutional caselaw and common sense all would seem to require your recusal,” the letter says. “At a minimum, there should be a public explanation as to why you think recusal is not required under federal law.”

The letter cites Caperton v. A.T. Massey Coal Co., the 2009 Supreme Court case holding that the Constitution required the recusal of a West Virginia Supreme Court justice who was elected with the help of more than $3 million in contributions from a coal mining executive. The court said the justice should not have participated in a case involving the CEO’s company, the Massey Coal Co.

Whitehouse and Blumenthal have urged the Supreme Court in an amicus brief to uphold the California donor disclosure law, according to Law360. Johnson is a co-sponsor of a bill to expand the Supreme Court to 13 justices.

Charles Geyh, a professor at the Indiana University at Bloomington’s Maurer School of Law, told Law360 that he thinks the Massey case is relevant, but a recusal is unlikely.

“I suspect that the Supreme Court would be loath to go down that road, for fear that it would open the floodgates to interminable line drawing exercises over how much support (which the judge/justice does not control) is sufficient to trigger the need to disqualify,” he said.

He noted that Barrett “has the first and final word on her own disqualification.”

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