Common Cause: Citizens United Should Be Overturned Because Scalia and Thomas Attended a Koch Seminar

Common Cause marks the one-year anniversary of Citizens United by asking Attorney General Eric Holder to investigate whether Supreme Court Justices Antonin Scalia and Clarence Thomas should have recused themselves from the case. Why? "It appears both justices have participated in political strategy sessions," says Common Cause, "perhaps while the case was pending, with corporate leaders whose political aims were advanced by the decision." Common Cause is referring to invitation-only seminars on free-market, small-government ideas sponsored by Koch Industries. A description of the 2010 Koch seminar in Aspen, the theme of which was "Understanding and Addressing Threats to American Free Enterprise and Prosperity," bragged that "past meetings have featured such notable leaders as Supreme Court Justices Antonin Scalia and Clarence Thomas."

It seems unlikely that attending such a conference had a decisive effect on the two justices' First Amendment views—especially since the effect would have had to be retroactive, given their longstanding skepticism of campaign finance regulations that interfere with freedom of speech. But never mind that, says Common Cause: Citizens United involved political speech by corporations. Koch Industries is a corporation, and many of the attendees at its seminars work for corporations. Therefore the decision is invalid.

Evidently the folks at Common Cause have decided this conflict-of-interest argument against Citizens United is more persuasive than the constitutional argument. They may be right.

I discussed the over-the-top reaction to Citizens United in the December issue of Reason.