12 April 23
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While receiving lavish gifts from billionaire Harlan Crow and then failing to disclose them, Clarence Thomas pushed to invalidate all disclosure laws, insisting that donors have a right to anonymously influence politics with unlimited amounts of cash.
The undisclosed gifts from billionaire Harlan Crow — who has links to groups that file amicus briefs lobbying the Supreme Court — were exposed by a ProPublica report last week. If Thomas now faces no investigation or consequences for potentially violating long-standing federal ethics laws, his actions could create a precedent effectively legalizing unlimited, unreported gifts in much the way he demanded for political donations.
In 2010, the Supreme Court issued its notorious Citizens United ruling, declaring that “independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption” — and therefore could be made limitlessly.
But that ruling, which unleashed billions of dollars in dark money election spending, did not go far enough for Thomas, who had previously insisted that there exists an “established right to anonymous speech.” He supported the Citizens United majority ruling, but issued a concurring opinion insisting that judges should overturn all rules that require transparency in political spending.
“This court should invalidate mandatory disclosure and reporting requirements,” Thomas wrote. He argued that donors could face retaliation and “ruined careers” when they disclose their political spending, citing an example from California in which supporters of a ballot measure ending same-sex marriage were allegedly harassed for donating to the ballot measure campaign.
Thomas decried the prospect of transparency empowering members of the public to come up with ways to try to shame donors and the public officials they bankroll.
“Disclaimer and disclosure requirements enable private citizens and elected officials to implement political strategies specifically calculated to curtail campaign-related activity and prevent the lawful, peaceful exercise of First Amendment rights,” he wrote.
The ProPublica report delineates numerous instances in which Thomas and his wife, Ginni, accepted gifts worth hundreds of thousands of dollars from Crow, a billionaire Republican donor, potentially violating a 1978 federal ethics law.
Should the Justice Department, Congress, and the Supreme Court now eschew any investigation or punishment, they could help Thomas achieve the vision he described in Citizens United: a political system that in practice allows billionaires and corporations to deliver unlimited anonymous cash to public officials, in total secrecy and with complete impunity.
“Letting wealthy donors engage in unchecked, private influence campaigns seems to be a core principle of Justice Thomas’s vision for our democracy,” Derek Martin, spokesperson for the government watchdog group Accountable.US, told the Lever. “But hardworking Americans who aren’t buddies with billionaire benefactors know that sunlight is the best disinfectant. Now that Clarence Thomas’s true priorities are out of the shadows, he needs to be held accountable.”
Citizens United “Does Not Go Far Enough”
The Supreme Court has famously refused to adhere to an ethical code, and Congress has not used its statutory power to write one for the highest court. Justices have declined to recuse themselves from cases in which they have financial interests as well as cases involving organizations that publicly supported their confirmation campaigns.
The justices have also maintained close ties with donor-funded groups such as Leonard Leo’s Federalist Society and the Supreme Court Historical Society.
But Thomas’s disdain for ethics rules stands out and shows in opinions he’s written in key campaign finance cases. Even in cases where Thomas joined the majority, he issued concurring opinions arguing that the court had not gone far enough in discarding political spending limits or disclosure laws — repeatedly asserting that the court had erred in its 1976 decision in Buckley v. Valeo, which upheld the constitutionality of contribution limits to federal candidates.
“By depriving donors of their right to speak through the candidate, contribution limits relegate donors’ points of view to less effective modes of communication,” Thomas wrote in 2000, dissenting from the court’s majority in Nixon v. Shrink Missouri Government PAC, which upheld contribution limits to candidates and committees in Missouri.
In 2004, Thomas broke with the majority in McConnell v. Federal Election Commission, which upheld key features of the Bipartisan Campaign Reform Act of 2002, including a ban on limitless contributions to political parties.
“The court today upholds what can only be described as the most significant abridgement of the freedoms of speech and association since the Civil War,” Thomas wrote in a dissenting opinion.
In that dissent, he argued that the majority was “allowing the established right to anonymous speech to be stripped away based on the flimsiest of justifications.”
Thomas similarly defended that right to “anonymous speech” by campaign donors in the Citizens United case in 2010.
While he asserted that the Citizens United decision “does not go far enough” in rolling back federal campaign finance laws, the watchdog group Protect Our Election argued that Thomas should have recused himself from the case altogether because his own nomination to the court in 1991 had been boosted by six-figure spending from the Citizens United Foundation — the group that brought the case.
It was later revealed that Thomas and the late justice Antonin Scalia had attended conferences hosted by Koch Industries, which pours massive amounts of money into US politics.
“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 midterm elections,” Common Cause wrote in a statement, asking the Justice Department to investigate Thomas’s and Scalia’s relationship with Koch Industries and vacate the Citizens United decision based on the conflict of interest.
An additional complaint from the group alleged that Thomas had claimed for twenty years on federal ethics disclosure forms that his wife, Ginni Thomas, had no “non-investment income” even though she had earned a salary for each of those years. (Those disclosure forms required Thomas to swear to the accuracy of the information.) From 2003 to 2009, her annual salary of at least $120,000 came from the Koch-backed Heritage Foundation.
Ginni Thomas told the Los Angeles Times in the wake of the Citizens United decision that her new conservative corporate lobbying group, Liberty Central, would be accepting donations made legal by the recent ruling. Crow donated the initial $500,000 raised by Liberty Central, according to Politico.
She now runs a consultancy that reportedly takes as clients conservative groups attempting to influence the outcomes of Supreme Court cases.
Clarence Thomas’s campaign finance crusade did not end with Citizens United. In 2014, when a Supreme Court majority struck down aggregate spending limits from individuals in McCutcheon v. Federal Election Commission, Thomas again argued that his right-wing colleagues had not gone far enough.
“This case represents yet another missed opportunity to right the course of our campaign finance jurisprudence by restoring a standard that is faithful to the First Amendment,” he wrote in a concurrence.
In response to the ProPublica report, Democrats on the Senate Judiciary Committee are planning a hearing on the Supreme Court’s ethical standards — or lack thereof.
“[If] the Court does not resolve this issue on its own, the Committee will consider legislation to resolve it,” the lawmakers wrote in a letter to Chief Justice John Roberts, calling on him to investigate Thomas.
But if Thomas can engage in flagrantly corrupt behavior without consequences, he will have set an important precedent beyond his written decisions and votes. As political scientist Corey Robin, author of The Enigma of Clarence Thomas, put it, “His position is clear: ‘Influence peddling is the essence of citizenship.’”
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