by Meghan Faulkner and Robert Maguire
Supreme Court Justice Clarence Thomas’s decisions have been benefiting wealthy and powerful political donors like Harlan Crow for decades.
Thomas has, over and over and over, ruled against donor disclosure, and he has also repeatedly ruled against having any contribution limits at all, allowing the wealthy to spend without interference from pesky government regulations.
Even if Thomas hasn’t specifically benefitted Crow through his decisions (although reports show Crow’s interests have come before the court) he has undeniably helped to make megadonors like Crow more powerful and more insulated from public criticism.
By now, Thomas’s apparent ethical violations are well known. The acceptance of lavish gifts from Crow and the failure to disclose them are likely egregious ethical breaches that a Supreme Court justice should know better than to accept or to cover up.
But when you look at Thomas’s history of rulings on similar issues — especially cases where he was the lone dissent or in the extreme minority — it starts to look like Thomas was giving us a heavy-handed hint about his disdain for democracy, accountability and judicial ethics.
Thomas believes political spending should be anonymous
When it comes to the rights of the wealthy to spend thousands or even millions of dollars influencing elections versus the rights of the rest of other Americans to know who is backing a particular candidate or initiative, Thomas’s decisions have consistently benefited the wealthy, allowing them to keep their spending in the shadows.
In 2010 in the notorious Citizens United case, Clarence Thomas joined the majority’s decision to gut critical portions of American campaign finance laws and opened the floodgates to a new era of unlimited and often unaccountable money in elections. That was just part of his crusade to allow vast amounts of anonymous campaign cash.
In that case, Thomas went a step further than any other justice, refusing to sign on to the part of the Citizens United opinion upholding donor disclosure as a cornerstone of American campaign finance laws.
In his partial dissent, Thomas claimed that donor disclosure rules violate the First Amendment rights of those donors, by opening them up to criticisms and threats that might “chill” their speech. (He ignored entirely the speech rights of constituents to hold their elected officials accountable.)
Just five months later, in a case called Doe v. Reed, Thomas again was the only justice dissenting in a case that was explicitly about disclosure. The case was focused on a Washington state law that allowed for public disclosure of petition signatures, and Thomas expressed concerns about the possibility that such disclosure “chills participation in the referendum process.”
In his concurrence, Justice Antonin Scalia seemed to address Thomas directly:
There are laws against threats and intimidation; and harsh criticism, short of unlawful action, is a price our people have traditionally been willing to pay for self-governance. Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed. For my part, I do not look forward to a society which, thanks to the Supreme Court, campaigns anonymously and even exercises the direct democracy of initiative and referendum hidden from public scrutiny and protected from the accountability of criticism. This does not resemble the Home of the Brave.
Thomas was apparently undeterred by Scalia’s comments.
Citing his dissent in Doe v. Reed six years later, in 2016, Thomas again argued that donor disclosure was a threat to free speech, in a case called Delaware Strong Families v. Denn.
The Supreme Court didn’t hear the case, but in his dissent from the Court’s decision not to grant certiorari, Thomas wrote “First Amendment rights are all too often sacrificed for the sake of transparency in federal and state elections.” He continued, “‘Sunlight,’ this Court has noted, is the ‘best of disinfectants’ in elections. But that is not so when ‘sunlight’ chills speech by exposing anonymous donors to harassment and threats of reprisal.”
Thomas believes money belongs in politics — without limits
Not only has Thomas engaged in a judicial crusade for the rights of political donors to remain anonymous, he has ruled against having any contribution limits in politics at all.
Immediately after the passage of the landmark Bipartisan Campaign Reform Act in 2002, Senator Mitch McConnell, along with groups like the NRA and the ACLU, brought a series of cases aimed at declaring the new law unconstitutional.
Though the Court in McConnell v. FEC largely upheld that law’s limits on how so-called “soft money” could be raised and spent, Thomas dissented, saying that “the Court today upholds what can only be described as the most significant abridgment of the freedoms of speech and association since the Civil War.”
Again in a 2006 case , Randall v. Sorrell, Justice Thomas not only sided with the majority in striking down the contribution limits in Vermont, but he wrote a concurrence — joined only by Justice Scalia — suggesting that essentially all campaign finance limits should be thrown out, freeing up wealthy donors to give as much as they want, directly to candidates for office — a move that would effectively destroy the entire post-Watergate campaign finance regime.
Thomas again made the argument in 2014’s McCutcheon v. FEC, which did away with the aggregate limits existing law placed on how much money an individual could give in a two-year election cycle. In a lone concurrence, Thomas wrote that the Court did not go far enough and should have applied the highest level of scrutiny to all limits on political giving, effectively erasing most of them.
As Citizens for Responsibility and Ethics in Washington (CREW) has repeatedly argued over the years, Thomas and fellow conservatives on the Court make the case that money is speech when seeking to free it of regulations, but then find that even the possibility of criticism warrants shielding that “speech” from scrutiny.
Thomas practices what he preaches from the bench
As we’ve seen from Thomas’s willingness to secretly accept lavish gifts from Harlan Crow, Thomas practices the same disdain for disclosure and accountability that he preaches from the bench.
In 1997, Thomas disclosed a private plane flight from Crow, which was publicly reported by the Los Angeles Times in 2004.
After public pushback, Thomas largely stopped disclosing any gifts at all, including Crow’s extreme largesse. It’s hard not to view that abrupt end of nearly all gift disclosure as a response to the criticism he faced.
As in his jurisprudence, where he has claimed that sunlight “chills” speech, Thomas apparently decided to stop allowing his personal gifts to see the light of day — avoiding criticism for years, at the expense of transparency and in violation of ethics rules.
Thomas’s lax views on judicial conflicts
Thomas has also not come down on the side of ethics and transparency in his decisions on judicial recusals.
When it comes to judges who benefit from wealthy interests spending on their behalf, Thomas has seen no reason they should recuse themselves from cases: In 2009’s Caperton v. Massey, he was in the minority and voted against forcing a judge who had gotten $3 million in campaign support from a single contributor to recuse when that donor was a party in a case before him. What seems to be a huge and obvious conflict of interest is apparently not a possible source of bias in Thomas’s view.
Just like with Thomas’s personal and professional reticence on transparency, he has lived out his values on judicial conflicts of interest. That was most recently demonstrated in his decision not to recuse in a case where he was the lone dissenting vote against releasing January 6 communications in which his wife Ginni Thomas was implicated, which the public learned of months after the decision.
Thomas’s undemocratic vision for our democracy
In Thomas’s perfect world, it seems, donors would have the ability to give as much money as they want, directly to campaigns, without any public disclosure requirements.
Judges who are supported by wealthy interests would face no requirement to recuse themselves from cases their benefactors have a stake in — and without disclosure, the public likely wouldn’t even know they would need to recuse themselves.
That’s a chilling vision of secret money and normalized corruption for regular Americans, but it would be great for powerful people like Harlan Crow and Clarence Thomas.
Meghan Faulkner is CREW’s Deputy Communications Director. Prior to joining CREW, Meghan worked as Digital Manager at Every Voice and as a digital consultant and staffer for political campaigns. Meghan received her B.A. in political science from Boston University.
Robert Maguire serves as CREW’s Research Director. Prior to joining CREW, Robert founded and ran the Center for Responsive Politics’ Politically Active Nonprofits project, tracking the spending and financial networks of “dark money” groups in U.S. elections. In 2014, he won the Society of Professional Journalists’ Sigma Delta Chi Award for Public Service Journalism for his reporting. Robert has a B.A. in English from Clemson University and a Master’s in U.S. Foreign Policy from American University.