Elements of the campaign finance “reform” community (the, shall we say, more unhinged elements, including the folks at Common Cause) have recently launched a hysterical crusade against U.S. Supreme Court Associate Justice Clarence Thomas for his role in voting with the majority in Citizens United v. Federal Election Commission. The charges are beyond ridiculous, just a half-step away from alleging that Justice Thomas was on the grassy knoll in Dallas.
The basic premise of Common Cause’s argument is that Thomas attended one of the events for libertarian and conservative donors hosted by brothers Charles and David Koch a few years ago (before the Supreme Court was even aware of Citizens United). Then, after the Citizens United decision in January 2010, organizations affiliated with the Koch brothers ran ads in the 2010 elections, taking advantage of their restored First Amendment rights.
Plus, Justice Thomas’ wife Virginia is a member of the Illuminati. Or was with the Free Masons when they poisoned the wells. Or something like that (she exercises her First Amendment right to petition the government).
These “facts,” in the eyes of the scolds at Common Cause, amount to a conspiracy and a significant conflict of interest because the Koch brothers “benefited” from Justice Thomas’ decision. They are now demanding that the Department of Justice investigate Justice Thomas and that he be disbarred, that the Citizens United decision be vacated, and that Justice Thomas recuse himself from hearing any challenge to the healthcare overhaul.
Suffice to say, few people are taking these complaints seriously.
But apparently a game of “I can top that insanity!” has broken out over the issue of Justice Thomas and the Citizens United decision, because now a group called Protect Our Elections (Protect Our Elections, for those of you unfamiliar with the group, has been pushing for some time now the theory that John Kerry actually won state of Ohio in 2004, which would have given him enough electoral votes to beat George Bush and be elected President.) has filed a complaint with the District of Columbia Court of Appeals claiming that under the Supreme Court’s Caperton v. Massey ruling in 2009, Justice Thomas should have recused himself from Citizens United because in 1991 the Citizens United Foundation ran ads supporting Justice Thomas’ nomination to the Supreme Court.
Seriously. Or, actually, not.
In Caperton, the U.S. Supreme Court decided that independent expenditures by Don Blankenship in a campaign for West Virginia’s Supreme Court created a conflict of interest for a judge when Blankenship’s company had a case before the court. That conflict of interest, the U.S. Supreme Court ruled, required the judge in question to recuse himself.
The Center for Competitive Politics had urged the Court to rule the other way, noting at the time that “[t]he Supreme Court has created a novel ‘probability of bias’ standard that is wholly unworkable,” and that “[t]his decision injects uncertainty into the judiciary and will reduce public confidence in judges as baseless claims of bias become more common.”
Requiring judges to recuse themselves from cases if someone connected to the parties had in the past publically but independently supported their confirmation or election would have disastrous consequences. In fact, shortly before Caperton was decided, I raised this issue in a blog post addressing independent groups that had began running ads supporting the nomination of Supreme Court Justice Sonia Sotomayor:
Politico reports that several groups have come together to run ads supporting the nomination of Judge Sonia Sotomayor to the U.S. Supreme Court:
“Key White House allies on Wednesday are launching a television ad called ‘Justice’ to build support for confirmation of Judge Sonia Sotomayor for the Supreme Court… The coalition—made up of the Leadership Conference on Civil Rights, Alliance for Justice and People for the American Way—says it made a significant initial six-figure buy that will begin running on national network news and cable news Wednesday…
…the ads raise an interesting issue. So called ‘reform’ groups as well as much of the media were recently all aflutter over the independent spending of Don Blankenship, CEO of Massey Coal, in the election for a West Virginia Supreme Court seat… His spending, around $3 million total… [was] a ‘corruption’ of the judicial system, according to these reformers, because Benjamin would surely feel grateful for Blankenship’s spending and rule in his favor…
This is all very interesting because, if the ‘reformers’ are right-judges are somehow beholden to those who engage in independent speech on their behalf-then as a Supreme Court Justice Sonia Sotomayor would presumably have to recuse herself from any case in which the three groups—the Alliance for Justice, the Leadership Conference on Civil Rights, and People for the American Way—were a party to.
Not only that, but presumably any cases the leadership of these groups were involved in outside of these groups would require similar recusal requirements.
Fortunately the U.S. Supreme Court, while getting much wrong in Caperton, did make it clear that there were “extreme” factors at play in the decision, mainly the fact that Blankenship’s independent spending constituted such a large percentage of all funds spent in the race, and did not intend for it to be widely applied.
There is nothing in the Court’s opinion to suggest that Protect Our Elections’ complaint has any merit even under the Caperton standards.
But this complaint as well as the other elements of the crusade against Justice Thomas, along with the obsession “reformers” seem to have with the fact that Charles and David Koch like to support libertarian and conservative groups and other causes that “reformers” don’t much like, helps to illustrate just how enraged, vindictive, and irrational some “reformers” have become over Citizens United.
And then they wonder why many donors to organizations aren’t keen to have their support of causes the “reformers” disapprove of made public.
