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

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.