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Reform group: Antonin Scalia, Clarence Thomas had Citizens United conflicts of interest

POLITICO
By JEANNE CUMMINGS
1/19/11 7:27 PM EST

To mark Friday’s anniversary of a court decision that allowed corporations to sink millions into politics, Common Cause, a reform group, is asking the Department of Justice to investigate alleged conflicts of interest involving two Supreme Court justices – in hopes of forcing the court to vacate the 5-4 ruling.

Common Cause officials and at least one legal expert acknowledged the difficulty of getting the landmark case overturned in this way. But in a document to be submitted to the department Thursday, Common Cause President Bob Edgar cites appearances by Justice Clarence Thomas and Justice Antonin Scalia at retreats sponsored by Koch Industries, a corporation run by two major Republican donors who helped finance some of the new GOP groups founded after the ruling.

It appears both justices have participated in political strategy sessions, perhaps while the case was pending, with corporate leaders whose political aims were advanced by the decision,” the Common Cause petition asserts.

In addition, Common Cause argues that Thomas should have recused himself because his wife was the founder of Liberty Central, a conservative group funded with a small group of anonymous donors who endorsed candidates in about a dozen 2010 races.

It’s unknown whether those donors are corporations or individuals, but Virginia Thomas said publicly that she’d accept corporate money in light of the decision in Citizens United v. Federal Election Commission.

Mary Boyle, Common Cause’s spokeswoman, called the strategy “a long shot” but said, “Just the mention of Scalia and Thomas in Koch Brothers materials raises questions about the impartiality of both justices.”

According to Boyle, “until these questions are resolved through a formal investigation, 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.

Reformers also hope to stir debate about ruling next week by staging a counter-event and a rally outside a Palm Beach hotel where Charles Koch is hosting a semi-annual retreat that will focus on politics and policy.

In a September invitation to the event unearthed by Think Progress, a liberal activist group, Koch said: “We cannot rely on politicians to do so, so it is up to us to combat what is now the greatest assault on American freedom and prosperity in our lifetimes.”

He also boasted that at the summer 2010 meeting in Aspen, “our group heard 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.”

Among the groups lending a hand was American for Prosperity, a Koch-backed group, which spent more than a million dollars airing attack ads against Democrats in the midterms.

On a page summing up next week’s meeting, Koch notes that past retreats “have featured such notable leaders as Supreme Court Justices Antonin Scalia and Clarence Thomas” among other conservative talk show and political leaders.

“We believe it is inappropriate for a Supreme Court judge 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,” Common Cause argues in its petition.

“A reasonable person would question the impartiality of Justices Thomas and Scalia in the Citizens United case based on their attendance at political strategy meetings sponsored by a corporation that raises and spends millions to defeat Democrats and elect Republicans,” it added.

Although Supreme Court justices are not bound by the same codes of conduct as federal judges, those rules were used as a model to provide guidance to the High Court.

Common Cause wants the justice department to investigate the connections between the justices and the Koch organizations to determine if conflicts – or the appearance of them – exist. If the department were to make such a finding, it could then ask the Supreme Court to vacate the ruling.

But Rick Hasen, a visiting election law expert at University of California Irvine law school, said the DOJ appeal isn’t likely to succeed.

“Justice Scalia has refused to recuse himself from cases involving a far closer relationship,” he said, adding that there is not evidence that the justices participated in strategy sessions about the case.

“I am a big critic of the Citizens United case. I would love to see it reversed,” said Hasen. “But this approach seems both unlikely to yield the desired result of seeing the case overturned and appears to be an unwarranted attack on the ethics of the Justices.”

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