Common Cause Asks Justice Department to Investigate if Scalia, Thomas Should Have Recused Themselves from Citizens United Decision

For Immediate Release

Contact: 

Mary Boyle, (202) 736-5770

Common Cause Asks Justice Department to Investigate if Scalia, Thomas Should Have Recused Themselves from Citizens United Decision

Apparent Role at Koch Industries political strategy session cited as conflict of interest

WASHINGTON - Common Cause today is asking the Department of Justice to investigate
the apparent involvement of Supreme Court Justices Antonin Scalia and
Clarence Thomas in political strategy sessions hosted by Koch
Industries, the nation's second largest privately held company. Common
Cause contends that these activities, if substantiated, constitute a
conflict of interests that would require the Court to vacate its
judgment in Citizens United v. Federal Election Commission, a
landmark ruling that ended longstanding restrictions on corporate and
union political spending. Decided one year ago tomorrow on a 5-4 vote, Citizens United provided
a political advantage to Koch Industries and its corporate allies, many
of  which took part in a surge of corporate and other "independent"
political giving that pumped nearly $300 million into the 2010 mid-term
elections. Common Cause believes that if sufficient grounds for
disqualification of either Justice exist, the Solicitor General should
file a Rule 60(b) motion with the Supreme Court, seeking to vacate the Citizens United judgment.

"Until these questions are resolved, public debate over allegations
of bias and conflicts of interest will serve to undermine the legitimacy
of the Citizens United decision and erode public confidence in
the integrity of our nation's highest court," Bob Edgar, president of
Common Cause, wrote in a letter to Attorney General Eric Holder.

"This is a serious, legitimate course of legal action," said Common
Cause Vice President for Programs Arn Pearson, a lawyer. "In any other
court, a conflict like this would result in a motion to vacate and we
believe we would prevail. The U.S. Supreme Court should be held and
should hold itself to the same standard."

"Controversies over conflicts of interest involving the Supreme Court
justices have been steadily increasing," said Jonathan Turley, J.B.
& Maurice C. Shapiro Professor of Public Interest Law at George
Washington University Law School. "There is an obvious lack of deterrent
for individual justices. At the present time the only real deterrent
comes from the media since the Judicial Code of Conduct does not apply
to the justices. While federal law requires justices to recuse
themselves, 28 U.S.C. 455 has not been enforced against a justice. This
leaves the law aspirational and leaves such questions to the discretion
of individual justice.  The problem is that some justices have shown
increasingly little judgment or restraint in avoiding conflicts of
interest."

Since Citizens United was decided a year ago, information
has come to light that raises serious questions about the impartiality
of Justices Thomas and Scalia in that case. With respect to Justice
Thomas, there is an additional potential financial conflict of
interests. Virginia "Ginny" Thomas, the justice's wife, is a founder and
former CEO of Liberty Central, a 501(c)(4) organization that stood to
benefit from the decision and played an active role in the 2010
elections. 

Until those questions are resolved, public debate over allegations of
bias and conflicts of interest will serve to undermine the legitimacy
of the Citizens United decision and erode public confidence in the integrity of our nation's highest court.

BACKGROUND:

  • Federal law requires any United States judge - including a
    Supreme Court justice - to "disqualify himself in any proceeding in
    which his impartiality might reasonably be questioned."News reports
    indicate that Justices Scalia and Thomas attended one or more secretive
    political strategy sessions sponsored by Koch Industries, the second
    largest privately held corporation in the U.S. and a major political
    player that directly benefited from the Supreme Court's decision in Citizens United. In a letter sent last September to invited guests for the company's next retreat, scheduled for Jan. 29-30 in Palm Springs, Ca., CEO Charles Koch noted that "Past meetings have featured such notable leaders as Supreme Court Justices Antonin Scalia and Clarence Thomas."
  • The Koch Industries retreats are highly political, and attended
    by an elite group of Republican donors and officials, conservative
    leaders, and captains of finance and industry. Charles Koch's September
    letter promised that the January program will convene "top experts and
    leaders to discuss -and offer solutions to counter - the most critical
    threats to our free society." A similar retreat last June in Aspen, Co.
    included a discussion of "plans to activate citizens against the threat
    of government over-spending and to change the balance of power in
    Congress this November. In response, participants committed to an
    unprecedented level of support.
    " (emphasis added)
  • That "unprecedented support" was made possible by the Supreme Court's dramatic decision in Citizens United. Koch Industries and its corporate allies derived a direct benefit from the Citizens United decision
    in the 2010 elections; the company, top executives Charles and David
    Koch and foundations controlled by their family have founded and
    provided financial support to other groups that benefited from the
    decision. According to press accounts, the astroturf group Americans for
    Prosperity - founded and funded by the Kochs - stated its intention
    last summer to spend $45 million to influence the 2010 elections. In
    addition, the Koch Industries PAC spent $2,518,676 in the 2010 election
    cycle, and individuals associated with Koch Industries and its
    affiliates contributed another $1,837,664. More than 90 percent of those
    funds were spent on behalf of Republican candidates. 
  • The Citizens United case was active before the Supreme
    Court between January 2008 and January 2010. If Justices Thomas and
    Scalia attended or spoke at a Koch Industries meeting during that
    period, it would certainly raise serious issues of the appearance of
    impropriety and bias. No mention of such an event is listed on the
    Justices' financial disclosure forms for 2008 and 2009.
  • Regardless of the timeframe, it is inappropriate for a
    Supreme Court judge to attend closed-door strategy meetings with the
    nation's wealthiest political donors, corporate CEOs and political
    officials and lend the prestige of their position to the political goals
    of that event
    . Canon 5 of the Code of Conduct for United States Judges states that:

     A judge should not...make speeches for a political organization...or
    attend or purchase a ticket for a dinner or other event sponsored by a
    political organization or candidate. ...A judge should not engage in any
    other political activity.

    The Code goes on to explain that:

    The term "political organization" refers to a political party, a
    group affiliated with a political party or candidate for public office,
    or an entity whose principal purpose is to advocate for or against
    political candidates or parties in connection with elections for public
    office.

  • A reasonable person would question the impartiality of Justices Thomas and Scalia in the Citizens United
    case if they attended a political strategy meeting sponsored by a
    corporation that raises and spends millions of dollars to defeat
    Democrats and elect Republicans. That appearance is heightened by the
    highly secretive nature of the meeting, which was closed to the public
    and the media. 
  • In addition, Common Cause requests the Justice Department
    investigate whether Justice Thomas should have recused himself from the Citizens United
    case based on a financial conflict of interests. Justice Thomas' wife,
    Virginia "Ginny" Thomas, is a co-founder of a 501(c)(4) organization,
    Liberty Central, which opened for business while Citizens United was pending at the Supreme Court. Ms. Thomas has described its mission as opposing the "tyranny" of President Obama
    and Democrats in Congress and "protecting the core founding principles"
    of the nation. The organization has several connections to Koch
    Industries and received initial funding from donations of $500,000 and
    $50,000 from two undisclosed donors.
  • We believe the public has a right to know if these contributions
    were derived from Koch Industries and/or its subsidiaries or any other
    corporate attendees of Koch-sponsored events where Justice Thomas was
    featured. All sitting justices have an obligation to be aware of the
    financial interests of their spouses and how those interests might be
    impacted by relationships with litigants before the court.  Without
    disclosure, Justice Thomas is inhibited in the process of making
    fundamental ethical and legal judgments and is required to disqualify
    himself in any proceeding "in which his impartiality might reasonably be
    questioned." 28 U.S.C. § 455(a).

Click here to view the full letter to the Justice Department.

Click here to view the Koch documents referencing Scalia and Thomas.

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Common Cause is a nonpartisan, nonprofit advocacy organization founded in 1970 by John Gardner as a vehicle for citizens to make their voices heard in the political process and to hold their elected leaders accountable to the public interest.

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