04.20.21

Whitehouse, Blumenthal, Johnson Call on Justice Barrett to Recuse Herself from Koch Dark Money Case

Members of Congress: ‘Statute, constitutional case law, and common sense all would seem to require your recusal from AFPF after AFP’s ‘full scale campaign to confirm’ your nomination’

Washington, DC – Senators Sheldon Whitehouse (D-RI) and Richard Blumenthal (D-CT) and Congressman Hank Johnson (D-GA) released today a letter to Justice Amy Coney Barrett calling on her to recuse herself from Americans for Prosperity Foundation v. Rodriquez based on well-established law and Supreme Court precedent.

AFPF v. Rodriquez is the latest move in a concerted effort by powerful special interests to cement their influence over government. The main litigant in the case, Americans for Prosperity Foundation (AFPF), is the nonprofit arm of the billionaire industrialist Koch family’s Americans for Prosperity (AFP), which spent heavily on a campaign to install Barrett on the Court. The members of Congress note in their letter that both federal law and Supreme Court precedent require judges to recuse themselves when their impartiality could reasonably be questioned. One such authority is the Supreme Court’s own decision in Caperton v. Massey Coal Company, holding that a state high court judge broke the law by failing to recuse himself from a case involving a litigant who spent lavishly to put him on the court.

“Statute, constitutional case law, and common sense all would seem to require your recusal from AFPF after AFP’s ‘full scale campaign to confirm’ your nomination,” write the members.

During her confirmation process in the fall, when the Court had yet to take AFPF, Whitehouse asked Barrett in written questions whether she would recuse herself if the case came before her. Barrett declined to answer, explaining, “[a]s a sitting judge and as a judicial nominee, it would not be appropriate for me to offer an opinion on abstract legal issues or hypotheticals,” and “[s]uch questions can only be answered through the judicial process.” Now, she is a sitting justice and the case is before the Court.

“In this matter, AFP, by its own pronouncements, played a significant and disproportionate role campaigning for your confirmation to the Supreme Court while its corporate sibling’s case was pending and imminent,” the members write. “‘Based on objective and reasonable perceptions,’ there is no reasonable difference between AFP and AFPF, and there is thus a Caperton-level ‘serious risk of actual bias.’”

Whitehouse, Blumenthal, and Johnson urge Barrett to recuse herself, and at a minimum explain how ruling in the case does not violate the federal recusal statute and the Supreme Court’s constitutional precedent in Caperton.

“At a minimum, there should be a public explanation as to why you think recusal is not required under federal law, since your participation in the case on these facts would appear to both conflict with 28 U.S.C. § 455 and effectively overturn Caperton,” the members write. “Understanding this determination will also aid Congress in its ongoing consideration of judicial ethics and transparency rules.”

AFPF v. Rodriquez (formerly Becerra) turns on a seemingly small question of whether California can collect limited information on large donors to nonprofits operating in the state. The state, which does not make the information public, uses the information to help administer taxes and to enforce rules governing nonprofit organizations’ tax-exempt status. AFPF challenged California’s rules, seeking First Amendment protection for anonymous “dark money” spending by urging the Court to extend a landmark Civil Rights Era precedent and declare a constitutional right to anonymity for its donors.

Whitehouse, Blumenthal, and 13 other colleagues filed an amicus brief in the case to call attention to the numerous dark-money groups rallying to AFPF’s side. The senators urged the Court to uphold the limited nonprofit disclosure requirements at issue and to help check the decline in Americans’ confidence in their government. Whitehouse also wrote a letter to the Acting U.S. Solicitor General urging the Justice Department to change its position in the case, which it did.

Oral arguments in AFPF are slated for April 26 and a decision is expected in June.

Read the members’ letter below. A PDF copy is available here.


April 16, 2021

The Honorable Amy Coney Barrett
Associate Justice
Supreme Court of the United States
One First St. NE
Washington, D.C. 20543-0001

The Honorable Scott S. Harris
Clerk of the Court
Supreme Court of the United States
One First St. NE
Washington, D.C. 20543-0001

Dear Justice Barrett:

During your recent confirmation proceedings, you were asked in written questions whether you would recuse yourself from Americans for Prosperity Foundation v. Rodriquez (Becerra), No. 19-251, a case then pending on the Court’s certiorari docket. You declined to do so, answering that “[a]s a sitting judge and as a judicial nominee, it would not be appropriate for me to offer an opinion on abstract legal issues or hypotheticals,” and that “[s]uch questions can only be answered through the judicial process.”[1] Because the Supreme Court has since granted the case, these questions are no longer abstract or hypothetical, so we renew the request.

AFPF concerns the constitutionality of California’s requirement that certain nonprofits confidentially provide their IRS Form 990 Schedule B, which identifies their major donors, to the State’s Attorney General. Americans for Prosperity Foundation (AFPF)—the 501(c)(3) arm of Charles Koch’s right-wing political advocacy group Americans for Prosperity (AFP)—has challenged the disclosure requirement. It now seeks from the Court a broad constitutional ruling allowing it to keep its donors’ identities secret.

“Just minutes after” your nomination by former President Trump last September,[2] when AFPF was pending at the Court, AFP announced that it was mounting a “Full Scale Campaign to Confirm Judge Amy Coney Barrett.”[3] AFP described its campaign as “a significant national ad campaign focusing on eleven key states to scale its activists’ efforts to urge their senators to confirm Judge Amy Coney Barrett to the Supreme Court.”[4] Its “national campaign . . . included a robust mix of targeted direct-mail, layered digital ads, and other tactics.”[5] Though AFP refused to disclose exactly how much it planned to spend on this campaign blitz, it confirmed that “it would be in the seven figures.”[6]

On January 8, 2021, just over two months after your confirmation, the Supreme Court granted AFPF’s cert petition.

Statute, constitutional case law, and common sense all would seem to require your recusal from AFPF after AFP’s “full scale campaign to confirm” your nomination. 28 U.S.C. § 455(a) provides: “Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned,” and 28 U.S.C. § 453, the judicial oath of office, requires all judges to swear that they will administer justice “without respect to persons.” Critically, the standard under the federal recusal statute is an objective one. The question is not whether you believe you can be impartial in ruling on a case brought by the corporate sibling of AFP, the group that spent millions of dollars in support of your nomination to the Court. It is whether an “objective, informed” member of the public “could reasonably question” your impartiality in this case.[7]

Caperton v. A.T. Massey Coal Co., 556 U.S. 868 (2009), considered whether the Constitution’s guarantee of due process required West Virginia Supreme Court Justice Brent Benjamin to recuse himself from an appeal of a money judgment entered against a coal company after the coal company’s chief executive spent $3 million to help Justice Benjamin win election to the court. The U.S. Supreme Court ruled that Justice Benjamin’s participation in the case violated the Due Process Clause of the Fourteenth Amendment. Caperton concluded that “there is a serious risk of actual bias—based on objective and reasonable perceptions—when a person with a personal stake in a particular case had a significant and disproportionate influence in placing the judge on the case . . . when the case was pending or imminent.”[8]

In this matter, AFP, by its own pronouncements, played a significant and disproportionate role campaigning for your confirmation to the Supreme Court while its corporate sibling’s case was pending and imminent. “Based on objective and reasonable perceptions,” there is no reasonable difference between AFP and AFPF, and there is thus a Caperton-level “serious risk of actual bias.”

At a minimum, there should be a public explanation as to why you think recusal is not required under federal law, since your participation in the case on these facts would appear to both conflict with 28 U.S.C. § 455 and effectively overturn Caperton. Understanding this determination will also aid Congress in its ongoing consideration of judicial ethics and transparency rules.

The American people are alarmed about the seemingly dominant influence of special interests on our politics and government. And the AFP/AFPF operation’s “full scale campaign” for your confirmation makes plain that our judiciary is a target of this massive influence apparatus. Now, in AFPF, the Court takes up an important case that squarely implicates the power of big special interests to exercise their influence from behind veils of secrecy.[9]

We hope you will consider seriously and address publicly the question of recusal in this case. Thank you for your attention to this.