Justice Clarence Thomas argued that contributors had a constitutional right to privately influence politics with unlimited funds while refusing to reveal expensive contributions from a billionaire.
Last week, ProPublica revealed millionaire Harlan Crow’s secret payments to Supreme Court amicus brief groups. If Thomas is not investigated for possibly breaching federal ethics regulations, his conduct might set a precedent authorizing unrestricted, unreported gifts, much like he demanded political payments.
The existing right to anonymous expression
In its 2010 Citizens United case, the Supreme Court ruled that “independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption” and may be made unlimitedly.
Thomas, who earlier claimed a “existing right to anonymous expression,” was unsatisfied with that verdict, which released billions of dollars in dark money election expenditure. He concurred with Citizens United but said that judges should reject all political expenditure disclosure requirements.
“This court should nullify mandatory disclosure and reporting requirements,” Thomas said. He cited a California case in which supporters of a ballot proposition outlawing same-sex marriage were reportedly harassed for giving to the campaign.
Thomas objected to openness allowing the public to humiliate benefactors and public leaders.
“Disclaimer and disclosure requirements empower private persons and elected officials to execute political methods particularly tailored to curb campaign-related activities and inhibit the legitimate, peaceful enjoyment of First Amendment rights,” he said.
According to ProPublica, Thomas and his wife collected hundreds of thousands of dollars in gifts from Republican billionaire contributor Crow, perhaps breaking a 1978 federal ethics regulation.
If the Justice Department, Congress, and the Supreme Court do not investigate or punish Thomas, they might help him realize his Citizens United vision of a political system that permits billionaires and corporations to give public officials limitless anonymous cash in full secrecy and impunity.
Derek Martin, spokeswoman for government watchdog Accountable.US, told The Lever that Justice Thomas’s vision for democracy includes letting rich funders participate in unrestrained, private influence campaigns. “But industrious Folks who aren’t friends with rich donors realize that sunshine is the greatest disinfectant. Clarence Thomas must be held accountable now that his actual motivations are revealed.
Citizens United “Is Not Enough”
Congress has not utilized its legislative ability to draft an ethical code for the Supreme Court, which has notoriously rejected one. Justices have refused to disqualify themselves from financial disputes and cases involving groups that publicly supported their confirmation campaigns.
The justices are also tied to donor-funded organisations like Leonard Leo’s Federalist Society and the Supreme Court Historical Society.
Thomas’s campaign financing judgments reveal his disregard for ethical regulations. 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 arguing that the court had erred in its 1976 decision in Buckley v. Valeo, which upheld federal candidate contribution limits.