Few people know the whole story about Citizens United, but literally everything about that case screamed “sleazy conservative agenda-setting” when it was released.
Now, due to the findings in a new report from Politico, the sleaze factor just rocketed up exponentially.
It sure seems like Ginni Thomas knew the decision was coming, and it sure seems as though five SCOTUS members wanted to set up what she had in mind.
The damage done has been incalculable.
Everyone knows that Citizens United opened up American politics to the influence of “big money.” The case allowed for the flow of anonymous donor money to nonprofit groups run by political activists.
Not very many people remember what the real Citizens United case was about!
The case was actually about whether a conservative nonprofit’s documentary bashing then-candidate Hillary Clinton violated then-in-place campaign finance laws.
Instead of simply deciding the issue, the SCOTUS did something it rarely does: it directed the attorneys to brief a separate issue that the parties didn’t even contemplate.
The Court ordered a briefing on whether it should overrule several of its previous campaign finance decisions.
Obviously, this signaled exactly what the Court wanted. It wanted to overrule at least parts of those decisions.
And, as if that were not bad enough, this all occurred just eight years after Congress expressed its beliefs about “soft money” and regulated it through the law commonly called “McCain-Feingold.”
So, not only did the SCOTUS bring a new issue into the case, it did so without deferring to Congress’s express intentions.
Now, Politico’s report makes it clear that Ginni Thomas and Leonard Leo — the head of The Federalist Society — seemed to know that the ruling was coming.
They were brazen enough to set up the exact type of organization that would benefit most from the ultimate Citizens United result, a free-for-all for political non-profits to accept anonymous donations.
Ginni and Leo set up the perfect organization to benefit from the ruling months before the decision came out. They called it “Liberty Central.”
You will never guess who donated the seed money for Liberty Central.
Harlan Crow!! Yes, the same guy who made the Thomas’s a jet-setting couple — sailing the South Pacific like billionaires — ensured Liberty Central could afford rent.
Crow sent a handy $500,000 to this brand-new organization before it was clear to the public what the organization might be able to do.
Ginni, Leo, and Crow sure seemed to know. (Of course, the court had somewhat signaled how it would rule generally, but the specifics still could have blocked some of the plans made, except that didn’t seem to bother the above three. It’s almost like they knew.)
Mad enough? Because you’re about to get angrier.
Here it comes. From Politico’s report:
“From those early discussions among Leo, Thomas and Crow would spring a billion-dollar force that has helped remake the judiciary and overturn longstanding legal precedents on abortion, affirmative action and many other issues. It funded legal scholars to devise theories to challenge liberal precedents, helped to elect state attorneys general willing to apply those theories and launched lavish campaigns for conservative judicial nominees who would cite those theories in their rulings from the bench.” (Emphasis added.)
The Federalist Society (from which all six conservative justices come — though Chief Justice Roberts resigned his membership when he came to the Court) knew exactly what it wanted.
Ginni Thomas provided what looks like a window into the Court and knew she wanted a role. They all knew what they wanted to do once established.
Ironically, Mitch McConnell said “the American people” would decide who filled Scalia’s seat (and then, unknowingly, Kennedy and Ginsberg’s seats), and 2.7 million more Americans voted for Clinton than Trump.
Had the “American people decided,” a lot of the damage wrought would’ve been mitigated.
AND IT STILL GETS WORSE.
Though “Liberty Central” was a non-profit, both Leo and Ginni started “for-profit” consulting groups that charged “Liberty Central” for their services. Ginni was surely screwing with us because her consulting firm was cleverly called “Liberty Consulting.”
Yes, “Liberty Central” wasn’t just a clearing house for money channeled to issues and candidates. It was also a pass-through for money directly to Leo and Ginni.
But that sounds illegal!
Laura Solomon, a Pennsylvania tax attorney who represents hundreds of charitable and other tax-exempt organizations and philanthropists, noted the “legal test” in the report:
“The real question then is, ‘what is Ginni Thomas qualified to do, what did they pay her to do, and was it fair market value?’”
From appearances (and “the appearance” of a conflict is supposed to be an ethics breach for judges and attorneys), it “appears” that Ginni Thomas’s most valuable qualification is being the wife of a SCOTUS Justice, whose pillow talk may include ideas going both ways and information from the court springing forth to the “right” people.
What is the fair market value of that appearance? (There is no proof cited in the report that information has passed from Thomas to Ginni but…)
If Ginni Thomas had founded this “non-profit,” she could have just taken a “reasonable salary” as many do. The fact that she founded a “for profit” to do consulting for Liberty Central acts as a neon light flashing that she wanted a lot more money than a “reasonable salary.”
Of course, Liberty Central was just the first, and Leo has gone on to start many other similar projects. Ginni continues to do “consulting.” Someone has to be paid for that window!
There is much more in Politico’s report.
But people knew that Citizens United, in overturning an issue that Congress had just spoken to eight years earlier, has always been known to be one of the sleaziest cases to ever come out of that building.
It turns out we really didn’t know the half of it.
Because out of that one ruling and that one group sprung many more like it. The “modern” conservative movement began. It has been 13 years since the ruling.
Look at the damage it’s done.
No wonder the Court seems to think it’s untouchable. Conservatives will do anything to keep it as is.
It comes in very handy from time to time.
This column is based on incredible original reporting by Heidi Przybyla of Politico.
I can be reached at jasonmiciak@gmail.com and on “X” at @JasonMiciak.
Editor’s Note: This is an opinion piece reflecting the opinion of the author alone
