The Honorable Eric Holder, Jr.
U.S. Department of Justice
950 Pennsylvania Avenue, NW
Washington, DC 20530-0001
Dear Attorney General Holder,
The Supreme Court’s 5-4 decision in Citizens United vs. Federal Election Commission, 130 S. Ct. 876 (2010), has had a dramatic impact, overturning prior Court precedent, ending restrictions on corporate and union political spending that had been in place since 1947, and fueling a surge in secret and independent spending in the 2010 elections. Outside groups spent more than $296 million on the 2010 Congressional midterms – a 330 percent increase over 2006 – with more than $135 million of that coming from undisclosed donors¸ according to the nonpartisan Center for Responsive Politics.
Since that decision, information has come to light that raises serious questions about the impartiality of Justices Thomas and Scalia in the Citizens United case. 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. With respect to Justice Thomas, there may also be an undisclosed financial conflict of interest due to his wife’s role as CEO of Liberty Central, a 501(c)(4) organization that stood to benefit from the decision and played an active role in the 2010 elections.
Until these questions are resolved, 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. As Attorney General, you are ideally situated to address this matter, both in the interest of justice and in the interest of your client, the Federal Election Commission. The Commission was the losing party in Citizens United, but may now have legitimate grounds to seek reconsideration.
Therefore, Common Cause hereby formally requests that the Justice Department promptly investigate whether Justices Thomas and Scalia should have recused themselves from the Citizens United case under 28 U.S.C. § 455. If the Department finds sufficient grounds for disqualification of either Justice, we request that the Solicitor General file a Rule 60(b) motion with the full Supreme Court seeking to vacate the judgment.
The American public deserves answers to a number of questions bearing on whether Justices Thomas or Scalia should be disqualified from the Citizens United case:
1. Would a reasonable person question the impartiality of Justices Thomas and Scalia based on their attendance at secretive Koch Industries retreats?
Federal law requires any United States judge – including a Supreme Court justice – to “disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” 28 U.S.C. § 455(a). “The very purpose of § 455(a) is to promote confidence in the judiciary by avoiding even the appearance of impropriety whenever possible.” Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 865, citing S. Rep. No. 93-419 at 5; H. R. Rep. No. 93-1453 at 5. “Under § 455(a), disqualification is required if a reasonable person who knew the circumstances would question the judge’s impartiality, even though no actual bias or prejudice has been shown.” U.S. v. Tucker, 78 F.3d 1313, 1324 (8th Cir. 1996)(internal quotes omitted).
In October 2010, news reports revealed that Justices Scalia and Thomas have attended one or more invitation-only retreats sponsored by Koch Industries, the second-largest privately held corporation in the United States and a major political player that directly benefited from the Citizens United decision.
That revelation comes from a letter and information packet, dated September 24, sent by Koch Industries CEO Charles Koch to potential attendees of the next Koch retreat, planned for January 30-31, 2011 in Palm Springs, California. Common Cause has obtained those materials, attached, courtesy of Think Progress, which broke the story.
The description of the Palm Springs program, entitled “Understanding and Addressing Threats to American Free Enterprise and Prosperity,” states that:
This action-oriented program brings together top experts and leaders to discuss –and offer solutions to counter – the most critical threats to our free society. …Past meetings have featured such notable leaders as Supreme Court Justices Antonin Scalia and Clarence Thomas; Governors Bobby Jindal and Haley Barbour; commentators John Stossel, Charles Krauthammer, Glenn Beck, and Rush Limbaugh; Senators Jim DeMint and Tom Coburn; and Representatives Paul Ryan, Mike Pence, and Tom Price.
The Koch Industries retreats are highly political, and attended by an elite group of Republican donors and officials, conservative leaders, and captains of finance and industry. According to Charles Koch’s invitation letter:
At our most recent meeting in Aspen [June 27-28, 2010], 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. The important work being done with these initiatives continues. (emphasis added)
That “unprecedented support” was made possible by the Supreme Court’s dramatic decision in Citizens United. Koch Industries and its corporate allies derived a direct benefit from the Citizens United decision in the 2010 elections, and the Kochs have founded and provided financial support for other groups that benefited from the decision. The Koch Industries PAC spent $2.6 million in the 2010 election cycle, and individuals associated with Koch Industries and its affiliates contributed another $1.8 million. More than 90 percent of those funds were contributed to Republican candidates. In addition, Americans for Prosperity – founded and funded by the Kochs – stated its intention last summer to spend $45 million to influence the 2010 elections.
The Kochs’ support for deregulation of campaign spending is well documented. A number of the highly influential groups that filed amicus briefs in support of the appellant were founded or funded by the Kochs, including the Cato Institute, Institute for Justice, Pacific Legal Foundation, and the Barry Goldwater Institute for Public Research. Representatives from other amici, including the U.S. Chamber of Commerce and the Wyoming Liberty Group, also attended last year’s Koch retreat in Aspen and benefitted from the Citizens United decision. The U.S. Chamber of Commerce spent nearly $33 million to influence the 2010 congressional midterms, according to data from the Center for Responsive Politics.
The Citizens United case was active before the Supreme Court between January 2008 and January 2010. If Justices Thomas and Scalia attended or spoke at a Koch Industries meeting during that time frame, it would certainly raise serious issues of the appearance of impropriety and bias.
However, no mention of such an event is listed on the Justices’ disclosure forms for 2008 and 2009, and the Koch Industries gatherings themselves are highly secretive. The program for the 2010 Aspen retreat contains a “Confidentiality and Security” section, which states:
In order to understand and develop strategies more effectively, the proceedings of this meeting are confidential. The meetings are closed to the public, including media. Please be mindful of the security and confidentiality of your meeting notes and materials, and do not post updates or information about the meeting on blogs, social media such as Facebook and Twitter, or in traditional media articles. These meetings are invitation-only and nametags should be worn for all meeting functions.
2. Does attendance of a closed-door Koch Industries retreat constitute political activity?
Regardless of the timeframe, 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. Canon 5 of the Code of Conduct for United States Judges states that:
A judge should not…make speeches for a political organization…or attend or purchase a ticket for a dinner or other event sponsored by a political organization or candidate. …A judge should not engage in any other political activity.
The Code goes on to explain that:
The term “political organization” refers to a political party, a group affiliated with a political party or candidate for public office, or an entity whose principal purpose is to advocate for or against political candidates or parties in connection with elections for public office.
Although the Code of Conduct is not binding on Supreme Court justices, § 455 was modeled upon it, and the Code’s standards are highly instructive with respect to what constitutes a reasonable basis for an appearance of bias. In the context of § 455, the political nature of an event and level of political activity of an organization is more relevant than the formal corporate form of the sponsor. 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. That appearance is heightened by the highly secretive nature of those meetings, which were closed to the public and the media. Neither Justice Thomas nor Justice Scalia listed their attendance on their disclosure forms, and the public has no way of knowing when the meetings took place in relation to the pendency of the Citizens United case, what issues were discussed or the extent of the Justices’ involvement.
3. Did Justice Thomas have a conflict of interest based on his wife’s interest in the subject matter of the Citizens United case?
In addition to questions concerning the appearance of partiality, the Justice Department should investigate whether Justice Thomas should have recused himself from the Citizens United case based on financial conflicts of interest covered under § 455(b).
In 2009, Justice Thomas’ wife, Virginia “Ginny” Thomas, left her employment at the Heritage Foundation to found a new 501(c)(4) organization, Liberty Central. The organization received initial funding from donations of $500,000 and $50,000, but has not disclosed the donors. Ms. Thomas served as the group’s CEO from November 2009 until December 2010 for an undisclosed salary.
According to the New York Times, Liberty Central is “dedicated to opposing what [Ms. Thomas] characterizes as the leftist ‘tyranny’ of President Obama and Democrats in Congress and to ‘protecting the core founding principles’ of the nation.” After its founding, the group quickly launched an electoral project called “Impact 2010,” stating on its website that:
The election this November will be a historic one. And the left is working hard to maintain its lock on power in Washington, with the help of union allies, and groups like Organizing for America, MoveOn.org, and others. Liberty Central is working to retire those in Congress who support this big government agenda, while simultaneously helping return our country to a more pro-liberty Congress.
The group used a scorecard to help determine its “battleground target races” in order to “ensure that certain elected officials get an early retirement.” It published a list of “pro-liberty candidates” and graded incumbents in targeted districts on an A-F scale, and then used that information to advocate for the election or defeat of congressional candidates. The New York Times reported that Ms. Thomas told Fox News at a Tea Party rally in Atlanta that, “Liberty Central will be bigger than the Tea Party movement.”
The Supreme Court’s decision in Citizens United, issued on January 21, 2010, provided a substantial benefit to Liberty Central while Ms. Thomas was its CEO by enabling it to raise and spend corporate funds directly advocating the defeat or election of political candidates for the first time in more than 60 years. According to a story in the Los Angeles Times, Ms. Thomas stated that Liberty Central “would accept donations from various sources – including corporations – as allowed under campaign finance rules recently loosened by the Supreme Court.”
Federal law requires a justice to recuse himself when:
He knows that…his spouse…has a financial interest in the subject matter in controversy…or any other interest that could be substantially affected by the outcome of the proceeding.
28 U.S.C. § 455(b)(4). As CEO of Liberty Central, Ms. Thomas clearly had an interest that was substantially affected by the Supreme Court’s decision in Citizens United. Although the law requires knowledge on the part of the judge, it also states that “[a] judge should…make a reasonable effort to inform himself about the personal financial interests of his spouse.” § 455(c). Given the high public profile of Ms. Thomas and Liberty Central, it would strain credulity for Justice Thomas to claim that he was not aware of this interest.
4. Do Koch Industries ties to his wife’s group, Liberty Central, create an additional appearance of bias for Justice Thomas?
These financial conflicts of interest for Justice Thomas come full circle to the § 455(a) appearance of partiality issue in light of Liberty Central’s ties to Koch Industries. At the time of the Citizens United decision, one of Liberty Central’s five board members was Matt Schlapp. Mr. Schlapp is a registered lobbyist for Koch Industries Inc. and two of its affiliated corporations, and was the former Vice President of Federal Affairs at Koch Companies Public Sector, LLC. He also runs a public affairs firm, Cove Strategies, that has close ties to the Republican Party and the Kochs. Additionally, Mr. Schlapp was assistant treasurer and chair of the candidate selection committee of Koch Industries Inc Political Action Committee (KOCHPAC) in 2008, and still listed himself as a director of KOCHPAC as of February 2010.
The complete lack of transparency of Liberty Central’s finances makes it difficult to assess the full scope of the ethics issues raised by Ms. Thomas’s role in founding and leading the group. Neither Common Cause nor the public at large is able to ascertain the interests of Liberty Central’s principal donor, who contributed $500,000 of the group’s $550,000 income in 2009, while the Citizens United case was pending before the Supreme Court. Liberty Central has declined to identify its funders or disclose its election-related spending, its website does not provide a phone number or physical address, and the address listed on its Form 990 is a UPS store in Burke, Virginia.
Summary and Request for Formal Action
For all of the above stated reasons, we believe that the public interest requires a full investigation by the Justice Department into, and public reporting of, potential grounds for disqualifying Justices Thomas and Scalia from the Citizens United case.
If the Department finds that “a reasonable person who knew the circumstances would question” either justice’s impartiality, § 455(a) requires disqualification. Tucker, 78 F.3d at 1324 (disqualifying a judge based on his relationship with President and Hillary Clinton, who had expressed public support for the defendant). Similarly, a finding that Ginny Thomas had an “interest that could be substantially affected by the outcome” of Citizens United requires disqualification of Justice Thomas under § 455(b). Given that the facts supporting an appearance of bias were not publicly known at the time of the decision, the appropriate remedy for either violation is for the Department to file a motion with the Court to vacate the judgment. Liljeberg, 486 U.S. at 867.
Justice Stevens, writing for the Court in Liljeberg, had the wisdom to predict that the courts’ “willingness to enforce § 455 may prevent a substantial injustice in some future case by encouraging a judge or litigant to more carefully examine possible grounds for disqualification and to promptly disclose them when discovered.” Id. at 868. “The guiding consideration is that the administration of justice should reasonably appear to be disinterested as well as be so in fact.” Id. at 869-70 (quoting Public Utilities Comm’n of D.C. v. Pollak, 343 U.S. 451, 466-67 (1952).
Avoiding bias in a case that affects every voter in our democracy is critical, both to prevent injustice and to avoid further damaging the public’s confidence in our judicial system and the rule of law. We respectfully request a meeting with you at your earliest convenience to discuss these concerns, and urge you to take prompt action to address this important matter.
President and CEO
Arn H. Pearson, Esq.
Vice President for Programs
 See, e.g., Kate Zernike, Secretive Republican Donors Are Planning Ahead, New York Times (Oct. 19, 2010), Lee Fang, Health Insurance, Banking, Oil Industries Met with Koch, Chamber, Glenn Beck To Plot 2010 Election, Think Progress (Oct. 20, 2010),
 See, e.g., Kate Zernike, Shaping Tea Party Passion Into Campaign Force, New York Times (Aug. 25, 2010), http://www.nytimes.com/2010/08/26/us/politics/26freedom.html; Jane Mayer, Covert Operations, The New Yorker (Aug. 30, 2010), http://www.newyorker.com/reporting/2010/08/30/100830fa_fact_mayer.
 CATO Institute, CATO Celebrates Its 25th Anniversary, (May 2002), http://www.cato.org/25th/.
 Institute for Justice, IJ Thanks Its Cornerstone Supporters: Charles & David Koch, (November 2001), http://www.ij.org/index.php?option=com_content&task=view&id=1750&Itemid=245.
 SourceWatch, Koch Family Foundations, http://www.sourcewatch.org/index.php?title=Koch_Family_Foundations (last visited Jan. 19, 2011).
 Zachary Roth, Group That May Bring Health-Care Lawsuit Is Backed By Big-Name Conservative Funders, TPMMuckracker, (April 7, 2010), http://tpmmuckraker.talkingpointsmemo.com/2010/04/group_that_may_bring_health-care_lawsuit_is_backed.php; Media Matters, Conservative Transparency: Goldwater Institute, http://mediamattersaction.org/transparency/organization/Goldwater_Institute/funders (last visited Jan. 19, 2011).
 Jackie Calmes, Activism of Thomas’s Wife Could Raise Judicial Issues, New York Times (Oct. 8, 2010), http://www.nytimes.com/2010/10/09/us/politics/09thomas.html.
 Kathleen Hennessey, Justice’s wife launches ‘tea party’ group, Los Angeles Times (Mar. 14, 2010), http://articles.latimes.com/2010/mar/14/nation/la-na-thomas14-2010mar14.
 See http://www.covestrategies.com/team.html.
 Clerk of the House of Representatives, Matt Schlapp: Lobby Contribution Report, ( July, 25, 2008), http://soprweb.senate.gov/index.cfm?event=getFilingDetails&filingID=13f00549-5473-4073-8cd1-d11ad0d7d286; Federal Election Commission, Campaign Finance Reports and Data, http://images.nictusa.com/cgi-bin/fecimg/?10930593442 (last visited Jan. 18, 2011).
 See http://www.libertycentral.org/about.