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.

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  • Pip||

    "It appears both justices have participated in political strategy sessions," says Common Cause, "perhaps while the case was pending, with corpor,ate leaders whose political aims were advanced by the decision."

    And I got a fiver that says they also likely met with academics (who belong to unions) during the same period. So what?

  • ||

    simple fact is u dont know. now go to ur room & bang ur head into the tard drum

  • ||

    Hurr durr. Hurr durr hurr hurr durr.

    Learn how to spell and reason like an adult. Dumbass.

  • Sandi||

    I have said this before, but it merits repeating: I took a shit in Ohio once.

  • sevo||

    Unfortunately, it seems to be following you.

  • ||

    when retards bang their head into the tard drum it sounds like derp's hurr durr

  • ||

    I would also ask what seminars/conferences did the Justices who voted in favor attend?

  • ||

    To be honest, I imagine that the more liberal justices, particularly the most recent appointees, do not want to open this door.

  • Anthony||

    You are probably very correct.

  • ||

    Yeah. Wouldn't want that security camera tape of Breyer blowing Paul Helmke to get out, especially.

  • Barely Suppressed Rage||

    It's amazing how, on many web sites, all you have to do is drop the word "Scalia" or "Clarence Thomas," and the hate-fest begins.

    This happens most frequently on the ABA Journal's website.

  • Old Mexican||

    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.

    Non sequitur (Latin for "it does not follow"), in formal logic, is an argument in which its conclusion does not follow from its premises. In a non sequitur, the conclusion can be either true or false, but the argument is fallacious because there is a disconnection between the premise and the conclusion.

  • ||

    By that logic, since some decisions affect all residents of the U.S., Supreme Court justices should not be allowed to interact with other residents of the U.S., especially when such residents are exercising any constitutionally protected liberties.

    Want to go after the justices for improper behavior? Then do so. Has no bearing whatsoever on the law, however.

  • Pip||

    In fact, since some decisions affect all residents of the U.S., Supreme Court justices should not be allowed to reside in the United States.

  • Hugh Akston||

    Or, because their decisions are rendered in English, they should not be allowed to reside in any anglophone country.

  • ||

    Not sufficient. Since the US is still the Dominant Economic Power® on Earth, it is obvious they will have to leave the planet.

  • ||

    Luna SCOTUS!

  • ||

    Or. . .

    * The International SCOTUS Station

    * The U.S.S. Scotusprise

  • omg||

    The moon? Unacceptable. Astronauts landed on it 5 times, planting the American flag down at each location. That makes the mood de-facto American territory and could lead to a corruption of judgement.

  • omg||

    Er, make that 6 times.

  • Meh||

    Justices in Spaaaaaace!

  • sevo||

    And you could add it's an odds on bet that Ginsburg watched news from one of the 'protected' corporations, thereby affecting her vote.
    She should have recused herself.

  • ||

    So, was it a "political strategy session"? More so than seminars, convocations, etc. attended by other Justices?

  • ||

    Most importantly, was Karl Rove there?

  • ||

    I dunno. While I agree with the Citizens ruling, I generally think it should be Court protocol that justices avoid any such events that would potentially be construed as a conflict of interest. If they want to go on the speaking circuit for ideological organizations, they should retire. While the argument is true that the ideology was largely in place well before said meeting, and organizations invited them based upon this orientation - it still opens all sorts of doors for unseemly things like quid pro quo.

  • ||

    any such events that would potentially be construed as a conflict of interest.

    Which would be just about everything.

    If they want to go on the speaking circuit for ideological organizations, they should retire.

    I can think of few organizations more ideological than universities. Would this mean no more speeches at commencements or to law schools?

  • ||

    They should be sequestered for life. Like juries in a high-profile case. They could live in the Capitol Hill area in a sealed bunker, with a tunnel between the bunker and the Supreme Court building.

  • Jack||

    Robo-judges is the only solution.

  • ||

    Only if properly programmed to kill anyone who tries to talk to them outside of oral arguments. They'll need a justice circuit, as well.

  • Ghost of Leto||

    Sukh conditioning should suffice, so long as they are not allowed to marry.

  • Vermont Gun Owner||

    You would like to think that, wouldn't you?

  • ||

    But going to invitation-only political strategy sessions for one side of the debate seems pretty obviously a conflict of interest far more so than educating law students on the workings of the Court or giving a pap-filled motivational speech to graduates.

    If Anthony Kennedy attended an event sponsored by Halliburton and the next week wrote the opinion that we can torture suspects without a trial and transport them to foreign countries for "advanced" punishment, you would not question possible quid pro quo?

  • sevo||

    See R C Dean, 1:41, above.

  • hmm||

    Have you heard some of the speeches given at colleges?

    Judge does not equal living in a bubble. Justice Kennedy can attend whatever he wants.

  • ||

    Potential conflicts and blatant conflicts are two different things. Abe Fortas, for instance, was forced to resign due to a strong indication that he might've done some quid pro quoing.

  • cynical||

    "invitation-only political strategy sessions for one side of the debate"

    That's a hell of a stretch. Going by the article, "side" in this case isn't talking about one of the actual parties in front of the court, it's talking a fairly widespread political viewpoint; and "debate" isn't referring to the particulars of this case, but instead to the general ideology of that side. Make no mistake, if Common Cause's favored judges/issues were ever held to the standard they're demanding for their opponents, they'd start a revolution.

  • ||

    Ok, so none of you all would care if my example occured? How could quid pro quo corruption ever be discovered without some ideological opponent first looking at context and asking questions? It's not like all of us weren't like "hmm, kinda weird that the GE CEO gets appointed to a presidential board the same week the administration approves his company's mega-merger." While it is ridiculous to say talking to an unrelated corporation or union involves a conflict of interest, it would be equally ridiculous to say that basic Court job protocol is the same thing as violating their freedom of expression or association.

  • cynical||

    Go ahead and allege a quid pro quo if you prefer. And back it up with some facts. But in this case, there's no intellectual honesty in their argument; all justices have these sort of conflicts all the time -- the fact they only point it out for a case they hate and for justices they suggests they don't have any actual principled opposition, just partisan whining.

  • alan||

    Exactly. If there was anything to this Communist Cause would have brought evidence to the table instead of making silly and vague allegations.

  • l0b0t||

    You are correct, your example would not raise hackles if it occurred. Perhaps because Halliburton is a construction company and could not be construed as a COI on a case involving DOJ rendition.

  • ||

    How much distance is "arms length"?

    I don't think it is practical to say that one cannot have contact with anyone who has an interest, however tangental. All of the justices probably have memberships in societies (other than the ABA) which have members having interest in one case or another before the court.

    It would certainly be improper for the justices to meet with direct parties to a case or to discuss the case with anyone other than their fellow justices, but some cases have such broad impact that the justices would have to live in absolute isolation to avoid contact with anyone who has an interest.

  • cynical||

    "While I agree with the Citizens ruling, I generally think it should be Court protocol that justices avoid any such events that would potentially be construed as a conflict of interest."

    But "corporations" as a special interest group is ludicrously broad, especially since it isn't even limited to for-profit public business corporations.

    Should they recuse themselves from any case on gender equality if they've met with women? What if they are women? Or for that matter, are men?

    Many cases they hear involve the government. But they work for the government; in fact, the federal government directly pays them money. Shouldn't they recuse themselves from any case involving actions taken by the federal government?

  • Michael Ejercito||

    I dunno. While I agree with the Citizens ruling, I generally think it should be Court protocol that justices avoid any such events that would potentially be construed as a conflict of interest. If they want to go on the speaking circuit for ideological organizations, they should retire. While the argument is true that the ideology was largely in place well before said meeting, and organizations invited them based upon this orientation - it still opens all sorts of doors for unseemly things like quid pro quo.


    How was there a conflict of interest?

    neither Scalia or Thomas were connected with the appellants or appellees in Citizens United .

    In United States v. Virginia , Thomas had a conflict of interest, and properly recused himself. Ditto Justice Kagan on cases where the Solicitor General's office argued in lower courts.

  • Almanian||

    I "Liked" Koch Industries on Facebook.

    Anyone associated in any way with Koch Industries should not be on the Supreme Court.

    Therefore, I cannot be a Supreme Court Justice. Do I have the about right? Bummer.

    *hangs head dejectedly*

  • ||

    I watched NOVA last week, which has long received funding from the Kochs. Thus ends my ambitions to be a justice.

  • Almanian||

    I am disappoint

  • mad libertaruian guy||

    WTF!! STUPIDITY!!!!

  • ||

    I watch NOVA also, I suppose this makes me a Canadian agent of Koch.

    On the topic of NOVA itself, however, I am finding that the science is getting "dumbed down". It used to be an intellectual challenge; now it's "watch the obvious common knowledge for 45 minutes to get one or two tidbits of interesting stuff".

  • ||

    I agree, though every blue moon an old-style NOVA episode will be aired. In the day, if you didn't have a strong lay understanding of the science/technology in question, NOVA didn't give a shit.

  • ¢||

    Wait.

    The memo said the big media/left simul-hit on the Kochtopus was planned for the last week of January. It's the 21st.

    SHUT DOWN EVERYTHING

  • hmm||

    KOCHTOPUS!!!

  • Ciitizen Nothing||

    You think the metric system is bad -- just wait until they start forcing us to count in base 8.

  • No Thumbs Willy||

    I am counting the days!

  • Dave||

    Relax, base-8 is just like base-10...if you're missing two fingers!

  • Rachel Maddow||

    I'm on it. I'm reallyreallyreallyreally on it!

  • Number 2||

    How does a seminar titled ""Understanding and Addressing Threats to American Free Enterprise and Prosperity" constitute a political strategy session? And note: it doesn't say that Thomas and Scalia were there, it says that they have been featured at PAST meetings, which may have been nothing at all like the meeting being advertised.

    So according to Common Cause, it is a conflict when a justice speaks in front of an organization that may have political strategy sessions at some time in the future. Talk about grasping at straws....

    PS - Does this logic apply to justices who speak before the the ACLU, NAACP, NARAL, NOW, etc., all of whom have been known to have conducted "political strategy sessions?"

  • Tony||

    Scalia should recuse himself from the scotus entirely for hanging out with Michele Bachmann.

  • ||

    You betcha!

  • The other side||

    Eliminationist Rhetoric!!!

    Off with his head.

  • Ed Schultz||

    Right on, Tony! And thanks for sucking my cock weekdays at 6:00 pm ET.

  • ||

    Has anyone pointed out how none of this matters? SCT justices decide if and when to recuse themselves. There is no higher court. Holder can fapp all day and night. Won't make a difference.

  • ||

    Well, they can be impeached.

  • cynical||

    True, but such a blatantly political move would further delegitimize the Obama administration in the eyes of at least half the country. I have some faint hope that, while the nation overtolerates trans- or bi-partisan tyranny, partisan tyranny will provoke an actual revolution.

  • Ciitizen Nothing||

    Good point. We are actually fortunate to have two groups of thieves competing for the spoils.

  • ||

    Congress could. Very unlikely with the current numbers. Impeach Earl Warren!!

  • ||

    IIRC, Abe Fortas was the last SCOTUS judge to be seriously threatened with impeachment. I thnk he pulled the plug before the proceedings could get started, though.

  • ||

    I think the other justices went into his chambers and explained why he'd either be resigning or dying in office. If I recall The Brethren correctly, anyway.

  • Mr. FIFY||

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

    So.

    Fucking.

    What.

  • Barely Suppressed Rage||

    To constitute cause for recusal, you've got to show the judge somehow has an interest in the outcome.

    Just because an outcome for one party or another might be in alignment with the judge's public policy preference is not enough - if that were the case, no judge could ever decide anything.

    Everyone knows Scalia is an textualist and originalist - believing the Constitution means what the words say, as intended and understood by the people who wrote them.

    So he attended a Federalist Society meeting here in Richmond, VA a few weeks back (I was there and chatted with him a bit - he's shorter than I thought he would be) - it's known that the Federalist Society is conservative and in favor of an originalist intepretation of the Constitution.

    So does this mean that next time a case comes before the SCOTUS that raises a question of interpreting the Constitution, he has to recuse himself, because he's attended and spoken at functions run by entities that favor a particular outcome in such a case?

    Of course not.

    Because if the case ends up being decided based on an originalist interpretation of the Constitution, how does he gain anything? How does he benefit? Other than perhaps the personal intellectual satisfaction of believing the case was correctly decided, I suppose.

    Now if the outcome of the case could result in him, or someone in his family, making some money or losing some money then, yeah - absolutely a conflict of interest.

    But merely attending a seminar hosted by or attended by people or entities that share your right-wing or left-wing view of the universe does not constitute an interest in the case, unless maybe one of that entity or person is one of the parties in the case.

  • Gilbert Martin||

    There was a Tribune story regurgitated on the front page of my local daily paper today that referred to Common Cause as a "government watchdog group".

    It is to laugh.

  • Obama||

    Now, I told you all, ixnay on the wanting you to be angry-ay, and getting in their faces-ay the campaign season kickoff in March!

  • Numeromancer||

    By logical extension, any justice who had read the Constitution and thought about it should recuse themselves on any issues regarding constitutionality.

    Sometimes I wish I were a child again, without knowledge that there are such verminous hacks in the world.

  • ||

    Citizens United should be overturned because it's crap. Corporations are not people, they're just not. The people who RUN those corporations, who own stock in them, and work for them - THEY are (presumably) franchised citizens with the right to free speech and the right to spend money.

    I don't find it unreasonable to believe that government intrusion into business should be kept at a minimum while at the same time business intrusion into politics should be kept to a similar minimum.

    Allowing corporations to nonchalantly throw around millions of dollars in political contributions can only lead to more bailouts and results of that ilk - government co-opted for the private benefit of a few corporations

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