Commentary Magazine


The Unraveling of the New York Times‘s ‘Citizens United Scandal’ Story

Liberal advocacy group Common Cause has filed a DOJ petition against Justice Antonin Scalia and Justice Clarence Thomas, claiming that the justices’ attendance at a Koch Industry event represented a conflict of interest in last year’s Citizens United v. Federal Election Commission Supreme Court case. The organization wants the justices to retroactively recuse themselves from the case and for the Court to vacate its decision.

But while the New York Times tried to portray Common Cause’s petition as a serious legal challenge this morning, the holes in the group’s allegations have continued to grow as the day has progressed.

Common Cause argues that the Koch brothers “were among the main beneficiaries of the Supreme Court’s decision in the Citizens United case,” and by attending Koch-sponsored events, Scalia and Thomas could have had their votes influenced:

Common Cause said in its petition to the Justice Department that if either of the justices appeared before Mr. Koch’s group between 2008 and 2010, when the court was considering aspects of the Citizens United case, “it would certainly raise serious issues of the appearance of impropriety and bias.”

But according to Politico’s Ben Smith, Scalia and Thomas appear to have attended only one Koch event each — and both events took place long before the Supreme Court even knew about the Citizens United case:

But Eugene Meyer, the president of the conservative legal group the Federalist Society, told me today that Scalia spoke to the Palm Springs conference in January of 2007. Citizens United was only filed on December 17 of that year. Thomas spoke to the conference in January 2008, after the case had been filed in federal district court, but months before the Supreme Court took the case in August.

And legal experts I’ve spoken to have also dismissed the basis of Common Cause’s petition.

“I’ve never heard of somebody filing a motion saying we’d like you to disqualify yourself from a case you decided last year because three years before that you gave a speech on a different subject [at an event],” said Ronald Rotunda, the Doy & Dee Henley Chair and Distinguished Professor of Jurisprudence at Chapman University School of Law. “If it was an oral argument, it would be hard to say without snickering.”

Rotunda said that it’s common, and even encouraged, for judges to attend and speak at events, as long as they don’t discuss pending cases. “If the judges have to be disqualified because somebody within earshot talks about legal issues, it would mean judges couldn’t read the newspaper.”

Common Cause’s case seems so flimsy, in fact, that some have guessed it must be a publicity stunt. Which makes sense — the organization is currently gearing up for its anti-Koch rally with Van Jones, which the Times somehow neglected to add to its report.

Multiple attorneys I’ve spoken to have said that this case just isn’t going anywhere. Or, as Rotunda put it, “There’ll be some people laughing about it, and then it’ll disappear.”

I think that’s a safe bet. Maybe someone should let the New York Times in on the joke.