On Charlie Sykes show this morning, we talked about Joanne Kloppenburg having a potential Caperton problem on the budget repair bill. Here's the low down. In Caperton v. A.T. Massey Coal Company, the United States Supreme Court held that a judge who has benefited from extraordinary spending by a party with a case that is pending or quite likely to come before the Court may have a constitutional obligation to recuse himself. This is particularly so when that spending and support has has a disproportionate effect on the election. In Caperton, Massey had a huge case that was almost certain to come before the West Virgina Supreme Court. Its CEO spent millions of dollars on behalf of a successful challenger and that challenger refused to step aside in Massey's case. He voted in Massey's favor and the US Supreme Court set aside the decision.
I have done some scholarly work on Caperton in which I argue that it should be read narrowly. But even a fairly narrow reading suggests a potential Caperton problem here. It is in fact a more extreme case than Caperton. Joanne Kloppenburg was almost certain to lose the election prior to the furor over the budget repair bill. In the February primary, Jusice Prosser waxed the field.
Since then public employee unions have, in President Obama's term, got all "wee-wee'd up." They have made a concerted effort to turn the race into a referendum on the budget repair bill and are pouring a lot of money into the race. The bill, while it will not devastate public employees, may well constitute an existential threat to the unions. In states where employees have been given a choice about whether to pay dues, as many as 95% have declined to do so.
Challenges to that bill are pending. In Caperton's terms, there is a potential for a "debt of gratitude" on the part of Kloppenburg to the unions such that there will be the potential for or appearance of a threat to her impartiality. She has, in fact, fanned that flame by winking at the "Prosser is Walker" theme and talking about listening to the voices of the protesters. But Caperton doesn't require that she be actually biased, only that circumstances are such that a jusge might be unable to hold the balance "narrow, straight and true." It is an objective test.
In fact, we may have a stronger case for recusal here than in Caperton. It was far from clear that the money spent in Caperton had an extraordinary impact on the election. Others spent large sums as well and there were all sorts of other reasons that the incumbent lost. If Ms. Kloppenburg wins today, it will be entirely due to the budget repair bill and ensuing efforts to turn the race into a referendum on that bill. Unlike Caperton (in which Massey's case was not an electoral issue), the election will have been about a matter likely to come before the Court.
How this will play out is unclear. The conservative wing on the Wisconsin Supreme Court has - wrongly in my view - said that the court has no power to enforce Caperton and Kloppenburg has - prematurely in my view because she cannot yet know all the pertinent facts - said that she will not recuse. In fact, saying that you won't recuse might be viewed as promising to rule in a certain way on a guestion likely to come before the court, i.e., the request to recuse. (Remember the fact that she believes she can be impartial is not dispositive under Caperton.) If she declines to recuse, the conservative wing of the Court would presumably still take the position that she cannot be compelled to do so.
But if she wins and does not step aside, any decision invalidating the budget repair bill may become subject to United States Supreme Court review. Again the breakdown of votes is confounding, since the conservatives on the Court dissented in Caperton.
But here's a potential scenario. I honestly don't know how David Prosser will vote on challenges to the budget repair bill. I wouldn't expect him to support the open meetings challenge but then I don't expect Pat Crooks to do so either. It's weak.
But I could be wrong. And maybe there are other challenges that will have more merit. All are likely to be based on structural limits on government action and a conservative jurist might be inclined to construe those limits broadly. If the unions defeat Prosser, might they be losing a fourth vote to invalidate the bill and electing someone who will be unable to sit?