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Campaign finance ruling: Should Supreme Court justices have recused themselves?

The liberal group Common Cause asks the Justice Department to investigate whether Supreme Court Justices Scalia and Thomas should have stepped aside in a major campaign finance reform case a year ago.

By Staff writer / January 20, 2011

Justices Clarence Thomas and Antonin Scalia gather for a group portrait at the Supreme Court in Washington, Oct. 8, 2010. The liberal group Common Cause is asking why Justices Thomas and Scalia didn't sit out a campaign finance reform case in which they may have had a conflict of interest.

Pablo Martinez Monsivais/AP/File

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Washington

The liberal advocacy group Common Cause announced on Thursday that it has asked the Justice Department to investigate whether two US Supreme Court justices should have recused themselves from consideration of a major campaign finance reform case last year.

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Common Cause President Bob Edgar said the group has asked Attorney General Eric Holder to examine whether Justices Antonin Scalia and Clarence Thomas should have stepped aside rather than vote in the Citizens United case.

The case, handed down a year ago on Friday (Jan. 21), struck down a portion of the McCain-Feingold campaign finance reform law that had barred corporate expenditures for political advertisements during campaign season.

Reform advocates denounced the ruling as opening the way for a flood of corporate money and corporate influence in US politics. Supporters of the decision praised it as recognizing that corporate officials have a free speech right to engage in public discussion of political issues of importance to the company.

Mr. Edgar said the justices were featured speakers at invitation-only retreats sponsored by Koch Industries, a private company whose officials have played an active role supporting Republican candidates and conservative causes.

He also said Justice Thomas may have had an undisclosed financial conflict of interest through his wife’s work as founder and CEO of a conservative advocacy group, Liberty Central. Edgar said the group stood to benefit from the Citizens United decision through easier fundraising and easier political spending. [Ms. Thomas has since stepped down as CEO of the group.]

Request to 'vacate the judgment'

“Common Cause hereby formally requests that the Justice Department promptly investigate whether Justices Thomas and Scalia should have recused themselves from the Citizens United case,” Edgar wrote in a Jan. 19 letter to Holder. “If the department finds sufficient grounds for disqualification of either justice, we request that the solicitor general file a … motion with the full Supreme Court seeking to vacate the judgment.”

Such action would be highly unusual. Under Supreme Court practice, it is left to each justice to determine whether the justice’s “impartiality might reasonably be questioned.”

Implicit in the Common Cause allegations is a suggestion that Scalia and Thomas may have been influenced to vote in a certain way that would favor corporations like Koch Industries or its corporate officers.

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