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.

Pablo Martinez Monsivais/AP/File
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.

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.

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.

But of the five justices voting in the majority in the Citizens United case, three of the justices – Scalia, Thomas, and Anthony Kennedy ­– were already on record as being strongly opposed to restrictions on political advocacy by corporations and unions. All three announced in 2003 that they were prepared to invalidate that section of the federal election law.

Roberts and Alito votes were key

The votes that tipped the balance in the Citizens United decision came from Chief Justice John Roberts and Justice Samuel Alito, who had replaced retired Justice Sandra Day O’Connor. Her vote in 2003 upheld that section of the election law.

The justices had no comment on the Common Cause allegations, Supreme Court Spokewoman Kathy Arberg said.

According to Supreme Court disclosure statements, the justices were invited by the Federalist Society, a conservative legal group, to speak at dinners hosted by Koch Industries CEO Charles Koch and his wife, Elizabeth. The dinners were held at the Vintage Club in Indian Wells, Calif., Ms. Arberg said.

Justice Scalia delivered an address on international law in January 2007. Justice Thomas discussed his book in January 2008.

The justices’ travel expenses were paid by the Federalist Society, Arberg said.

The Common Cause letter says the Citizens United case was before the high court between January 2008 and January 2010. If the justices addressed the Koch meeting in that time frame, “it would certainly raise serious issues of the appearance of impropriety and bias,” Edgar wrote.

He added: “Regardless of the timeframe, we believe it is inappropriate for a Supreme Court justice to be ‘featured’ at or attend closed-door strategy meetings with political donors, corporate CEOs, candidates and political officials, and thereby lend the prestige of their position to the political goals of that event.”

The letter also questions the source of a $500,000 contribution to Mrs. Thomas’s group, Liberty Central, in 2009 – while the Citizens United case was pending at the high court.

George Washington University Law Professor Jonathan Turley called the Common Cause charges “disturbing.”

In a conference call with reporters arranged by Common Cause, he said the allegations underscore the inadequacy of high court procedures that leave it to the justices themselves to determine whether a potential conflict or appearance of impropriety should result in his or her recusal.

“At a minimum, the Common Cause letter should raise questions about what we need to do, so there isn’t this vacuum at the Supreme Court when it comes to judicial ethics,” Professor Turley said.

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