WI John Doe Cert. Petition Raises Substantial Questions, But #SCOTUS May Not Bite

I have posted a copy of the redacted petition for cert. in the John Doe Wisconsin case. Never before have I seen a cert. petition with even parts of the questions presented redacted.  The redactions make it difficult to fully assess the claims, as is the fact that this was not written by Supreme Court specialists—because the Wisconsin Supreme Court, in more than a bit of chutzpah, denied the ability of Reed Smith to work pro bono on this cert petition. (The petition contains a dig at this point: “The state supreme court denied the request, refusing to recognize the right of the district attorneys to be represented by counsel. The court wrote that no need had been shown by the petitioners, whose appellate experience is limited to traffic and misdemeanor matters in the state court of appeals.”)

There are two meaty issues. First, it seems pretty clear to me that the Wisconsin Supreme Court mangled U.S. constitutional campaign finance law to let elected officials like Gov. Scott Walker coordinate with outside groups on an unlimited basis with groups taking unlimited campaign contributions from whatever source so long as the outside groups avoid express words of advocacy like vote for or vote against. The second issue is whether those Justices on the WI Supreme Court who benefitted from the outside spending by the very groups before the court should have recused themselves from hearing the case. The number of redactions involving the actions of controversial state Supreme Court Justice David Prosser are remarkable in and of themselves.

Either of these arguments are substantial enough, and the case important enough nationally, to merit Supreme Court review, although while Justice Scalia was still on the Court I would be very wary of bringing any campaign finance case to the Supreme Court lest the Supreme Court actually move in the direction of even further deregulation, taking a bad ruling and making it national.  Now, with Scalia gone and a potential 4-4 split on these issues, the calculation is uncertain. There could well be a cert denial on the campaign finance question even if, as I said, the WI Supreme Court surely mangled constitutional law.

There is a better shot on the recusal issue. It could well interest Justice Kennedy, who along with the four liberals formed a majority in Caperton, seeing due process limits on judges deciding cases where they benefitted from very large campaign spending on their behalf. Even Chief Justice Roberts, who dissented in Caperton but who has been concerned about the role of judges in fundraising (see his Williams-Yulee decision) could be interested in this case.

But who knows what this 4-4 Court will do with a hot potato such as this case?


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