Common Cause reminds the nation that the 2011 Clarence Thomas scandals remain unresolved despite the renewed focus this week on the court during its three-day special hearing on the health insurance mandate.
Common Cause filed a complaint with the IRS against Liberty Central, a group founded by Virginia "Ginni" Thomas, wife of the associate justice and a tea party activist. The reform group alleges that Liberty Central appears to have violated federal tax laws by advocating for the defeat of political candidates, including those supporting the Affordable Care Act signed by President Obama. Its legality is now pending before the Supreme Court and widely regarded as in jeopardy from Thomas as part of an all-Republican court majority.
Justice Byron White and the Thomases are shown at left in 1991 at a White House swearing-in ceremony staged by the Bush administration to quell criticism of Thomas after his controversial confirmation.
The media reported that Thomas had a lifetime appointment at that point, which in effect silenced critics. Chief Justice William Rehnquist administered the oath in secret the following week. Clarence and Virginia Thomas are now embroiled in a new controversy on top of revelations last year that the justice gave false sworn statements over many years that hid some $1.6 million in payments and gifts. Much of it was to his wife from wealthy backers who appreciated her advocacy as the founder and chief executive of Liberty Central, which is a 501(c)(4) “social welfare” group that the IRS permits to work in politics so long as that politics is not the primary focus. 
Common Cause noted that its complaint comes amid a wide-ranging IRS review of the tax status of politically active non-profit groups. The tax agency has sent questionnaires to dozens of Tea Party groups, Common Cause noted, as well as Priorities USA Action, a committee run by former aides to President Obama, and Republican-aligned committees such as Crossroads GPS, founded by Karl Rove and his allies.
“As the Internal Revenue Service examines how some of these ‘social welfare’ groups continue to enjoy tax exemptions while getting directly involved in electoral politics, it should take a close look at Liberty Central,” said Common Cause President and CEO Bob Edgar, right.
In a March 21 letter to IRS Commissioner Douglas Shulman, Common Cause requested an investigation of Liberty Central’s tax status. If the agency finds that the group’s primary activity was influencing the 2010 elections, the letter urged that Liberty Central lose its tax-exemption, be reclassified as a political organization, and face taxes and penalties.
The dispute arises as the court's Republican majority seems poised to strike down the health insurance mandate that is a centerpiece of the Obama administration's landmark health care/insurance law. Headlines March 28 from the three major Capitol Hill tabloids on the Supreme Court's hearing on the mandate were: "Individual Mandate Looks Vulnerable" (Politico), "Mandate Teeters In Court" (The Hill) and "GOP Likes What It Is Hearing In Court" (Roll Call).
The Hill quoted New Yorker legal analyst Jeffrey Toobin as saying the critical second day of a special three-day court hearing appeared to be a "train wreck" for the Obama Administration as four conservative justice, including a presumed swing vote of Associate Justice Anthony M. Kennedy, suggested via questions their opposition to the mandate, which the law's defenders say is essential to the goal of expanded coverage.
Thomas, as usual, asked no questions during the three days. But analysts generally expect him to oppose the law in keeping with his practices and because his wife's group has been opposed to political candidates who support the law.
Furthermore, a request last fall by 52 House Democrats for a House Judiciary Committee impeachment investigation of Thomas focused heavily on the $1.6 million that Thomas failed to report in his sworn annual judicial disclosure filings. Much of the money went to his wife, who has long been active as a conservative activist. She has resigned from Liberty Central after initially filing legal papers saying she expected to make $495,000 in salary from it following a start-up donation of $500,000 from real estate tycoon Harlan Crow, a longtime opponent of federal authority.
Thomas resubmitted his sworn statements with disclosures of the money, and has suggested to his supporters that the controversy is politically motivated. House Republicans have not acted on the impeachment investigation request, and conservatives have sought to create an equivalent controversy by demanding that Associate Justice Elena Kagan recuse herself from voting on the health case because she was Solicitor General before her appointment to the court.
Neither she nor Thomas has recused, and Chief Justice John Roberts, a Republican, claims that all justices are so far above any ethics conflict that no rules should be applied to them aside from their own discretion.
In highlighting the issues, Common Cause says:
Ginni Thomas founded Liberty Central in November 2009 and filed a request for 501 (c)(4) status in January 2010. Within a few weeks, notes the letter by Common Cause counsel Elizabeth Kingsley, the organization had turned its attention to the 2010 elections and “the major focus of the group’s President, Ms. Thomas, appears to have been coordinating with Tea Party organizations and traveling around the country to districts where Liberty Central had ‘target races.’”
Meanwhile, Liberty Central’s website published A-F grades for Tea Party and incumbent candidates across the country and urged site visitors to get involved in those races, donate to Liberty Central’s favored candidates, and “ensure that certain elected officials get an early retirement.”
A major focus of Ms. Thomas’ and Liberty Central’s efforts appears to have been the defeat of Members of Congress who voted for the Affordable Care Act....At a September 2010 fundraiser for the First Coast Tea Party in Jacksonville, Fl., Ginni Thomas described that group as a satellite office of Liberty Central and base for Liberty Central staff, and called for the election of several Florida candidates. The First Coast Tea Party is one of many groups currently under investigation by the IRS; others being probed include Tea Party organizations in Virginia and Texas where Thomas addressed Tea Party rallies.
Common Cause says that "Ms. Thomas left Liberty Central after the November 2010 elections, and the group no longer appears to be active." But its letter asserts that there is “substantial evidence of large-scale political activities, certainly sufficient to prompt an inquiry from the (IRS), which is the only reliable way to establish whether Liberty Central was actually operated primarily for political purposes, as appears from external observation to be the case.”
Related News Coverage
Common Cause, Common Cause Files IRS Complaint Against Liberty Central, Group campaigned aggressively against Members of Congress who voted for the Affordable Care Act. Press Release Contact: Mary Boyle, March 21, 2012. Extensive political activity in the 2010 elections by a nonprofit group founded and formerly run by lobbyist and Tea Party activist Virginia “Ginni” Thomas appears to have violated federal tax laws, Common Cause said.
Washington Post, Health-care case brings fight over which Supreme Court justices should decide it, Robert Barnes, Nov. 27, 2011. Just a little more than an hour after some House Democrats recently demanded an inquiry into Supreme Court Justice Clarence Thomas’s ethics, Senate Republicans stepped up the pressure on Justice Elena Kagan to take herself out of the court’s decision on the health-care reform act. The process repeated itself a few days later. House Judiciary Committee Chairman Lamar Smith (R-Tex.) called for the release of more documents about Kagan’s role as President Obama’s solicitor general; the liberal group People for the American Way came out with another broadside against Thomas.
Washington Post, How ethical are these Supreme Court justices? Online Q&A With Ethics Expert John Steele, Nov. 28, 2011.
Justice Integrity Project, 52 House Dems Seek Thomas Impeachment Probe, Andrew Kreig, Nov. 21, 2011. The movement to investigate Supreme Court Justice Clarence Thomas Slaughter for impeachable offenses continues to gather momentum even as he thumbed his nose at critics in recent days by fund-raising for ultra-right critics and presiding over a celebration of his own heritage orchestrated by one of his billionaire financial supporters.
Justice Integrity Project, Reform Teams Must Fight for the Dream, But Much Better, Andrew Kreig, Oct. 3, 2011. As the Supreme Court begins its annual term today, Oct. 3, I'd like to share suggestions below on how legal reformers -- our team, in other words -- can be much more effective in achieving results. That’s the dream. But the reality is that we face huge challenges that require new approaches to fight due process violations and other wrongdoing that appears to extend high into the legal system.
New Yorker / Annals of Law, Partners: Will Clarence and Virginia Thomas succeed in killing Obama’s health-care plan? Jeffrey Toobin, Aug. 29, 2011. As the Justice has assumed an influential role on the Roberts Court, his wife has helped lead the public war against the Administration. It has been, in certain respects, a difficult year for Clarence Thomas. These tempests obscure a larger truth about Thomas: that this year has also been, for him, a moment of triumph.
In several of the most important areas of constitutional law, Thomas has emerged as an intellectual leader of the Supreme Court. Since the arrival of Chief Justice John G. Roberts, Jr., in 2005, and Justice Samuel A. Alito, Jr., in 2006, the Court has moved to the right when it comes to the free-speech rights of corporations, the rights of gun owners, and, potentially, the powers of the federal government; in each of these areas, the majority has followed where Thomas has been leading for a decade or more. Rarely has a Supreme Court Justice enjoyed such broad or significant vindication.
New York Times, Thomas' ties to a Texas real-estate baron named Harlan, Mike McIntire, June 27, 2011. The two men met in the mid-1990s, a few years after Justice Thomas joined the court. Since then, Mr. Crow has done many favors for the justice and his wife, Virginia, helping finance a Savannah library project dedicated to Justice Thomas, presenting him with a Bible that belonged to Frederick Douglass and reportedly providing $500,000 for Ms. Thomas to start a Tea Party-related group. They have also spent time together at gatherings of prominent Republicans and businesspeople at Mr. Crow’s Adirondacks estate and his camp in East Texas.
In several instances, news reports of Mr. Crow’s largess provoked controversy and questions, adding fuel to a rising debate about Supreme Court ethics. But Mr. Crow’s financing of the museum, his largest such act of generosity, previously unreported, raises the sharpest questions yet — both about Justice Thomas’s extrajudicial activities and about the extent to which the justices should remain exempt from the code of conduct for federal judges.
Other Justice and Integrity News Catching Our Attention
The Atlantic, 13 Final Thoughts About the Health Care Arguments, Andrew Cohen, March 30, 2012. I'd like to wrap up this extraordinary week in legal history with a few brief thoughts about the just-completed arguments in the Affordable Care Act cases. A lot of people who care about the law, and politics, and health care will remember this week for a very long time, no matter what the United States Supreme Court decides about the federal health care law. And it's funny how even just two days away from the melee has given me a little perspective on what went down.
FireDogLake, The Eight Big Mistakes Democrats Made Regarding the Constitutionality of ObamaCare, Jon Walker Friday March 30, 2012. To understand how we got to the point where the Supreme Court could potentially strike down the entire Affordable Care Act because of the individual mandate, it is important to identify the string of stupid mistakes Democrats made that got us to this point. By my current count, Democrats had at least eight big chances to avoid this possible that they completely messed up.
Jersey Journal, Convicted former Deputy Mayor Leona Beldini granted 2 extra weeks of freedom before prison term, Michaelangelo Conte, March 29, 2012. The date that corrupt former Jersey City Deputy Mayor Leona Beldini must begin serving her 3-year prison sentence has been pushed back two weeks because of her poor health following a recent knee surgery, her attorney said. "We are grateful she has been given this extension to get herself recuperated," attorney Peter Willis said today of the ruling by U.S. District Court Judge Jose Linares that moves Beldini's surrender date from April 3 to April 15. The lawyer said Beldini is hospitalized and doing "terribly," although "she is stable for the moment in terms of her blood pressure and vital signs but has had this very invasive knee surgery and her general health is poor." Beldini, 76, was one of more than 40 people arrested in July 2009 as part of the FBI's massive Bid Rig III probe, which centered mostly on FBI informant Solomon Dwek's dealing with municipal officials and candidates for office. Beldini, who was treasurer of Jersey City Mayor Jerramiah Healy's re-election campaign in 2009, was convicted on two counts of bribery in February 2010 for accepting two $10,000 contributions from Dwek in exchange for promises to help his obtain approvals for his supposed real-estate deals. She is sentenced to three years in federal prison. Willis said that while recovering from a recent knee surgery Beldini suffered a series of mini-strokes, an irregular heartbeat that was difficult to control with medication, and was experiencing erratic blood pressure. Willis has motions pending that contend Beldini did not get a fair trial and he is asking Linares to grant her a new trial. The government has argued that the motions are inappropriate, and that Beldini's trial was fair.
Atlanta Journal-Constitution, Cheating our children: Suspicious school test scores across the nation, Heather Vogell, John Perry, Alan Judd and M.B. Pell, March 24, 2012. Suspicious test scores in roughly 200 school districts resemble those that entangled Atlanta in the biggest cheating scandal in American history, an investigation by The Atlanta Journal-Constitution shows. The newspaper analyzed test results for 69,000 public schools and found high concentrations of suspect math or reading scores in school systems from coast to coast. The findings represent an unprecedented examination of the integrity of school testing. The analysis doesn't prove cheating. But it reveals that test scores in hundreds of cities followed a pattern that, in Atlanta, indicated cheating in multiple schools.
Legal Schnauzer, Facebook Warns Prospective Employers Not to Ask for Passwords in Job Interviews, Roger Shuler, March 23, 2012. A story about employers asking prospective workers for their Facebook passwords during job interviews has spread rapidly this week on the Web. Now, Facebook itself has joined the fray, warning employers to back off. When I first heard about the story, I thought it was a joke. But it's serious, as this piece from Reuters shows, with its headline "More Employers Asking for Facebook Passwords." From the Reuters piece: Studies have shown that Facebook can be a useful hiring tool. Just a 5- to 10-minute perusal of a user’s profile can net more information than a basic personality test. It’s no wonder employers head to the site to check out prospective hires.
Los Angeles Times / Philadelphia Daily News, Justices expand rights of accused in plea deals, David G. Savage, March 22, 2012. The Supreme Court, noting that virtually all criminal cases are settled through plea deals, has ruled for the first time that defendants have a right to competent advice from a lawyer on whether to accept an offer to plead guilty in exchange for a lighter sentence. At a minimum, the court said, the defendant must be told of any formal offers from a prosecutor that would result in a favorable deal. The pair of 5-4 decisions handed down Wednesday could broadly affect the nation's criminal-justice system because of the importance of plea deals. "Ours for the most part is a system of pleas, not a system of trials," said Justice Anthony M. Kennedy. The "simple reality" is that 97 percent of federal convictions and 94 percent of state convictions result from guilty pleas, he said. For that reason, it is crucial, he said, that the constitutional right to a competent lawyer is not limited to trials alone, but also to the back-and-forth of plea deals.
Best of New Orleans, The Sudden Dubiety of His Redoubt; Perricone broke some major rules by publicly discussing current cases, Clancy DuBos, March 20, 2012. In terms of volume, disgraced Assistant U.S. Attorney Sal Perricone has rivaled his assumed namesake, noted newspaper columnist and essayist H. L. Mencken, but that's as far as it goes. Suffice it to say that the prosecutor who masqueraded as the acerbic — and prolific — "Henry L. Mencken1951" in the reader comment sections of nola.com is no H. L. Mencken. For starters, the real Mencken had the guts, and the integrity, to use his own name. Mencken also was a great wordsmith; Perricone is, by comparison, a quasi-literate poseur. His rants betrayed not so much a keen mind as a disturbed one. By his own admission, Perricone posted some 600 comments under the "Mencken" nom de plume. Attorneys and others who have followed this story suggest he had several other online alter egos, all of whom, like "Mencken," had a penchant for pretentious but archaic words ("dubiety" was a favorite), alliteration and, above all, spleen. Why the anonymity? Several reasons. Perricone broke some major rules by publicly discussing current cases. Like many anonymous online commenters, he no doubt felt he couldn't be traced. Many cowards — and bullies — find that anonymity offers them a certain redoubt (to borrow another of Perricone's favorite bons mots), if not a misplaced sense of bravado.
Bloomberg, Newspapers Lose $10 Dollars in Print for Every Digital $1, Edmund Lee, March 19, 2012. U.S. newspapers lost $10 in print advertising revenue last year for every $1 they gained online, a deeper loss than in 2010, as competition from Internet companies increases, a study by Pew Research Center found. Newspaper revenues declined more sharply last year than in 2010 when publishers lost $7 in print advertising for every $1 generated from online outlets, according to Pew’s study entitled “State of the News Media,” which is published today. “They’re continuing to lose ground to tech intermediaries,” such as Google Inc. and Facebook Inc. (FB) as well as to Apple Inc. (AAPL) and Internet retailer Amazon.com Inc. (AMZN), said Tom Rosenstiel, director of Pew’s Project for Excellence in Journalism, in a telephone interview. “The news industry has been fundamentally disadvantaged in this area,” he said.
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