Opponents of Proposition 8 have put up a map purporting to show where donors to the “Yes on 8” campaign live. You can get the name, occupation, and amounts of donation for each mapped donor. While you can’t get the exact address, it would be quite easy to use the map to find the homes of donors.
The information used to create the map is all publicly available, but it does make it more accessible and convenient to use. But for what end?
In Duwe v. Alexander, prominent First Amendment attorney James Bopp won a federal district court decision (PDF) striking down SCR 60.06(3)(b), part of the Wisconsin Code of Judicial Ethics. Bopp convinced Judge Shabaz that the Code’s section prohibiting judges from making “pledges, promises, or commitments” interfered with their free speech rights under Republican Party of Minnesota v. White, 536 U.S. 765 (2002).
Bopp is currently pursuing another free speech claim in Siefert v. Alexander, again in the Western District federal court (PDF). Here, Bopp represents a Milwaukee County judge who is challenging three sections of the Code that prohibit judges from belonging to or participating in political parties.
He is also counsel to Justice Michael Gableman in the disciplinary proceedings regarding Gableman’s campaign TV ad. In the reply to the Judicial Commission’s charges (PDF), he affirmatively asserts that SCR 60.06(3)(2), the “misrepresentations” clause, is an unconstitutional impingement on free speech.
In other words, Bopp’s litigation in Wisconsin has successfully taken down one judicial ethics code section, and four more are under challenge.
But Bopp is litigating outside Wisconsin as well, and a recent decision Bopp won in a federal court in Kansas may result in new litigation in Wisconsin. Yesterday, Bopp issued a release hailing Judge Julie A. Robinson’s decision in Yost v. Stout, which struck down the Kansas Judicial Code’s ban on the direct solicitation of campaign donations by judicial candidates. Wisconsin SCR 60.06(4) says that “A judge, candidate for judicial office, or judge-elect shall not personally solicit or accept campaign contributions.” Under the federal district court’s decision in Kansas, it seems clear that 60.06(4) is unconstitutional. Will a Wisconsin judge or candidate soon challenge it as such?
It may be a new story that is already old, but here’s my own example of the role blogs can play in legal scholarship. A post on my personal blog is turning into a paper. But before I can complete the paper (I was well into another project), a case comment in the Harvard Law Review has responded to my idea.
I am working on a paper discussing the potential implications of the Supreme Court’s decision last term in Davis v. FEC, striking down the “Millionaire’s Amendment” to the Bipartisan Campaign Reform Act (more commonly known as the McCain-Feingold Act). This provision increased the campaign contribution limits for candidates facing an opponent who has self-funded in excess of a trigger amount. So, if a wealthy self-financing candidate (like our own Sen. Herb Kohl or Rep. Steve Kagen) spends a sufficient amount of his or her own funds, the amount that individuals and party committees are allowed to contribute to his or her opponent increases. The Court, in a 5-4 decison, found that this provision is an unconstitutional burden on the self-financing candidate’s free speech rights.
The essential point of the paper, made on the very day that the decision came down on my personal blog (note to the Dean: see your summer research dollars at work), is that, when considered with the Court’s decision in Wisconsin Right to Life v. FEC during the previous term, Davis may well render public financing schemes unworkable.