Common Cause has sent the letter below to Justice Clarence Thomas raising concerns over his failure to report his wife’s income in prior years. For full disclosure, I have conferred with Common Cause on this nondisclosure issue and participated as an independent expert in the press conference yesterday on the absence of binding ethics rules for the members of the Supreme Court.
In the letter below, Common Cause states:
According to the Heritage Foundation’s Form 990s filed with the Internal Revenue Service, Ms. Thomas earned a salary in excess of $120,000 each year between 2003 and 2007. In 2009, Ms. Thomas became the founding CEO of a new 501(c)(4) organization, Liberty Central. The current CEO, Sarah Field, told the New York Times that Ms. Thomas was compensated for her work at Liberty Central at a salary set by the board.
Federal law requires the disclosure of spousal income and records indicate that Virginia “Ginny” Thomas was paid $686,589 by the Heritage Foundation from 2003-07. Likewise, published reports indicate that she drew a salary from Liberty Central, a political education and action group she co-founded in 2009. However, none of this income is reported on the annual forms, according to Common Cause.
Title VI states:
TITLE 5 – APPENDIX
ETHICS IN GOVERNMENT ACT OF 1978
TITLE I – FINANCIAL DISCLOSURE REQUIREMENTS OF FEDERAL PERSONNEL
§ 102. Contents of reports
(1) Except as provided in the last sentence of this paragraph, each report required by section 101 shall also contain information listed in paragraphs (1) through (5) of subsection (a) of this section respecting the spouse or dependent child of the reporting individual as follows:
(A) The source of items of earned income earned by a spouse from any person which exceed $1,000 and the source and amount of any honoraria received by a spouse, except that, with respect to earned income (other than honoraria), if the spouse is self-employed in business or a profession, only the nature of such business or profession need be reported.
(B) All information required to be reported in subsection (a)(1)(B) with respect to income derived by a spouse or dependent child from any asset held by the spouse or dependent child and reported pursuant to subsection (a)(3).
(C) In the case of any gifts received by a spouse or dependent child which are not received totally independent of the relationship of the spouse or dependent child to the reporting individual, the identity of the source and a brief description of gifts of transportation, lodging, food, or entertainment and a brief description and the value of other gifts.
(D) In the case of any reimbursements received by a spouse or dependent child which
are not received totally independent of the relationship of the spouse or dependent child to the reporting individual, the identity of the source and a brief description of each such reimbursement.
(E) In the case of items described in paragraphs (3) through (5) of subsection (a), all
information required to be reported under these paragraphs other than items (i) which the reporting individual certifies represent the spouse’s or dependent child’s sole financial interest or responsibility and which the reporting individual has no knowledge of, (ii) which are not in any way, past or present, derived from the income, assets, or activities of the reporting individual, and (iii) from which the reporting individual neither derives, nor expects to derive, any financial or economic benefit.
(F) For purposes of this section, categories with amounts or values greater than $1,000,000 set forth in sections 102 (a)(1)(B) and 102 (d)(1) shall apply to the income, assets, or liabilities of spouses and dependent children only if the income, assets, or liabilities are held jointly with the reporting individual. All other income, assets, or liabilities of the spouse or dependent children required to be reported under this section in an amount or value greater than $1,000,000 shall be categorized only as an amount or value greater than $1,000,000.
Reports required by subsections (a), (b), and (c) of section 101 shall, with respect to the spouse and dependent child of the reporting individual, only contain information listed in paragraphs (1), (3), and (4) of subsection (a), as specified in this paragraph.
(2) No report shall be required with respect to a spouse living separate and apart from the reporting individual with the intention of terminating the marriage or providing for permanent separation; or with respect to any income or obligations of an individual arising from the dissolution of his marriage or the permanent separation from his spouse.
This income is particularly controversial because of the concern over Thomas’ connections to conservative donors and groups — particularly in light of his participation in the Citizens United decision. On the forms, there is a specific place for reporting spousal income and Thomas states “none.”
Reporting significant income from such groups would have raised additional questions at the time of the decision. Once again, as noted yesterday, these allegations only serve to highlight the relative absence of binding rules and procedures that apply to members of the Supreme Court.
None of his wife’s earnings are disclosed on Justice Thomas’ annual financial disclosure forms, however. The Ethics in Government Act of 1978 requires federal officials, including Supreme Court justices, to disclose their spouse’s income. On the appropriate section of his 2003 to 2009 disclosure forms, Justice Thomas checked the box for “none.”
On another development today, the Supreme Court spokesman released a statement on the alleged participation of Scalia and Thomas in Koch events. Tom Hamburger of the Los Angeles Times reports:
Supreme Court spokesperson Kathy Arberg said that Justices Thomas and Scalia had traveled to Indian Wells, California to address a Federalist Society dinner sponsored by Charles and Elizabeth Koch but did not actively participate in the separate Koch strategy and policy meetings. Justice Scalia spoke about international law at the January 2007 meeting of the quasi-academic Federalist Society and did not attend the separate political and strategy meeting hosted by the Kochs, she said. Justice Thomas spoke to the Federalists at the same location in January 2008 about his recently published book. Thomas then dropped by one of the separate Koch meeting sessions. “It was a brief drop by,” Arberg said. “He was not a participant.”
It is not clear what “dropping by” means in this context. The Koch sessions are a strong ideological and political theme — often soliciting support to change Congress and fight liberal members. What I do not understand (in light of this denial) is why Scalia and Thomas as listed in Koch promotional material with Ed Beck and Rush Limbaugh. On page 13 of the brochure below, the Koch organization states:
This action-oriented program brings together top experts and leaders to discuss –and offer solutions to counter – the most critical threats to our free society. …Past meetings have featured such notable leaders as Supreme Court Justices Antonin Scalia and Clarence Thomas; Governors Bobby Jindal and Haley Barbour; commentators John Stossel, Charles Krauthammer, Glenn Beck, and Rush Limbaugh; Senators Jim DeMint and Tom Coburn; and Representatives Paul Ryan, Mike Pence, and Tom Price.
This passage will raise question as to what Koch events these justices did attend.
Here are the Common Cause letters and documents: