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Citizens United and a Nonsense Charge of ‘Conflict of Interest’



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There’s nonsense, and then there’s stupid, symbolic nonsense. Common Cause hits the latter today with its claim — dutifully picked up by the New York Times and Politico — that the Supreme Court’s judgment in Citizens United v. Federal Election Commission should be vacated because Justices Scalia and Thomas are “biased” in campaign-finance cases. That’s the case, you’ll recall, in which the Supreme Court held that the government does not have the power to ban books and movies, even if they are produced, published, or distributed by corporations.

The proof of bias: Justices Scalia and Thomas, in compliance with judicial ethics rules, have spoken to retreats hosted by Charles Koch.

“But how does that affect their objectivity in Citizens United?” you might ask. Well, let’s just follow the chain. Charles Koch is the chairman of Koch Industries, which, like many other businesses and unions, used the constitutional rights affirmed in Citizens United to spend money in the 2010 elections. Koch Industries mainly supported conservatives. Justices Thomas and Scalia are generally known to be conservative. Voila! A conflict of interest.

But wait, it gets worse: Ginni Thomas, Justice Thomas’s wife, is a conservative activist who works for and with conservative groups that also engage in politics! Such sordid dealings are just too much for Common Cause. The non-partisan goo-goos at CC (a group headed by a former Democratic congressman who succeeded as president a current Democratic congresswoman, who in turn succeeded as president a former Democratic Massachusetts attorney general) demand a Justice Department investigation.

Of course, under Common Cause’s standard, no justice could ever hear a campaign-finance case, since all justices are appointed by either Democratic or Republican presidents, and are perceived as “liberal” or “conservative.” But then, this complaint isn’t intended to be taken seriously, as indicated by the timing — the complaint could have been brought any time but, clearly by coincidence, comes on the eve of the anniversary of Citizens United.

Meanwhile, back in the real world, none of the horror stories predicted by opponents of Citizens United have come to pass. Contrary to the warnings of Keith Olbermann and the claims of defeated congressman John Hall (D., N.Y.), we don’t live in a fascist dictatorship. Last fall’s elections featured more competitive seats than we have seen in a long time, with an ever expanding playing field thanks to the ability to get money into races quickly. The campaign was also more issue-oriented than we’ve seen in a long, long time. And Citizens United didn’t create a monetary advantage for either side — in fact, it merely and only partially neutralized an otherwise enormous Democratic financial advantage.

Says Common Cause vice president Arn Pearson, “We’re treading in new territory here for us.” Or sinking in quicksand, or something.

— Bradley A. Smith is Josiah H. Blackmore II/Shirley M. Nault Designated Professor of Law at Capital University Law School



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