The Supreme Court’s decision in the 2010 Citizens United case transformed the world of politics. It loosened restrictions on campaign spending and unleashed a flow of anonymous donor money to nonprofit groups run by political activists.
In the months before the ruling dropped in January of that year, a group of conservative activists came together to create just such an organization. Its mission would be to, at the time, block then-President Barack Obama’s pet initiatives.
The activists included Federalist Society leader Leonard Leo and his ideological soulmate, a hard-edged activist named Virginia Thomas, the wife of Supreme Court Justice Clarence Thomas.
“Ginni really wanted to build an organization and be a movement leader,” said a person familiar with her thinking at that time. “Leonard [Leo] was going to be the conduit of that.”
She also had a rich backer: Harlan Crow, the manufacturing billionaire who had helped Thomas and her husband in many ways, from funding luxury vacations to picking up tuition payments for their great-nephew.
At the time, the Citizens United ruling was widely expected, as the court had already signaled its intentions. When it came, it upended nearly 100 years of campaign spending restrictions.
The conservative legal movement seized the moment with greater success than any other group, and the consequences have shaped American jurisprudence and politics in dramatic ways.
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.
The movement’s triumphs are now visible but its engine remains hidden: A billion-dollar network of groups, most of which are registered as tax-exempt charities or social welfare organizations. Taking advantage of gaps in disclosure laws, they shield the identities of most of their donors and some of the recipients of the funds. Among those who’ve been paid by the groups are leading thinkers and individuals with close personal ties to Leo — including a whopping $7 million to a group run by a close friend and his wife. They also include a for-profit business for which Leo himself is chairman and which received tens of millions of dollars from his nonprofit network.
Leo’s role as the central figure in this movement has long been known, culminating in his acquisition last year of what many believe to be the largest political donation in history. Few are aware of the extent to which the movement’s baby steps were taken in concert with Ginni Thomas.
Two months before the Citizens United decision, but after the justices had signaled their intentions by requesting new arguments, attorney Cleta Mitchell — later to play a role in Donald Trump’s false claims about the 2020 elections — filed papers for Ginni Thomas to create a nonprofit group of a type that ultimately benefited from the decision. Leo was one of two directors listed on a separate application to conduct business in the state of Virginia. Thomas was president. She signed it on New Year’s Eve of 2009, and Crow provided much of the initial cash. A key Leo aide, Sarah Field, would come aboard to help Thomas manage the group, which they called Liberty Central.
After Liberty Central went public, it provoked an outcry over a Supreme Court justice’s wife promoting causes like overturning Obamacare that were before her husband’s court. Leo and Thomas changed gears. His network reactivated a dormant group, the Judicial Education Project, which would go on to become a major supplier of amicus briefs before the nation’s highest court. She created a for-profit consulting business using a similar name — Liberty Consulting — that enabled her to perform consulting work for conservative activist groups.
The Judicial Education Project supplied some of her business: Documents indicate Leo ordered at least one recipient of his groups’ funds, Kellyanne Conway, to make payments to Ginni Thomas for unspecified work, according to a Washington Post story earlier this year.
Now, Liberty Consulting is a focus of interest from congressional committees probing the Supreme Court’s ethics disclosures. Senate Democrats have demanded that Leo and Crow provide a list of “gifts, payments, or other items of value” they’ve given Thomas and her husband.
Meanwhile, Leo’s network of nonprofits — whose annual donations have skyrocketed into the hundreds of millions of dollars — is the subject of an investigation by the Washington, D.C., attorney general, POLITICO reported last month. The probe followed a POLITICO report in March that raised questions about whether Leo’s groups were enriching him and his friends by hiring their businesses and donating to their nonprofit groups.
Together, the probes have combined to raise the question of whether Leo’s groups have taken advantage of lax disclosure laws to send additional business and funds to Ginni Thomas, among other activists. That would be legal as long as Thomas was providing services commensurate with the payments.
“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?’” said Laura Solomon, a Pennsylvania tax attorney who represents hundreds of charitable and other tax-exempt organizations and philanthropists.
Leo, Thomas, Crow and Conway did not respond to questions about their financial relationships, and whether Leo’s groups continued to ask contractors to work with Thomas.
Asked how much money overall Leo has directed to Thomas, when the payments began and if they ever stopped, a Leo spokesman responded: “No comment.”
Thomas’ representative, attorney Mark Paoletta, did not respond to questions.
In a July 25 letter to Congress, Leo’s lawyers said his advocacy work is protected under the First Amendment and that any congressional inquiry into his relationships with Supreme Court justices is “politically charged” and tantamount to harassment.
In a July interview with The Maine Wire, a conservative outlet near his home, Leo spoke about his efforts to “defend the Constitution” and why his nonprofit groups don’t reveal their donors.
“It’s not to hide in the shadows,” he said. “It’s because we want ideas judged by their own moral and intellectual force.”
Launching a Movement
Many people trace the start of the conservative legal movement to 1982, the year of the founding of the Federalist Society, which provided a forum for law students and professors with conservative ideas to incubate their theories.
But the movement that has had such a profound impact on the courts today — one that involves money and politics, more than legal theories or principles — gained steam in the wake of the Citizens United decision.
The case followed a highly unusual path — one blazed by a five-justice conservative majority who seemed determined to strike a blow against campaign finance restrictions.
Initially, the dispute centered on whether a conservative nonprofit’s unflattering documentary on former Democratic presidential candidate Hillary Clinton violated campaign finance laws. Instead of resolving the case along the lines argued by the lawyers, the justices took the unusual step of asking for re-arguments based on a sweeping question — whether they should overrule prior decisions approving laws that limited spending on political campaigns.
The re-argument took place on Sept. 9, 2009. Two months later, on Nov. 6, Mitchell filed an IRS application on behalf of Ginni Thomas to form the group that became Liberty Central Inc. Paperwork Thomas signed on New Year’s Eve listed Leo, then the Federalist Society’s executive vice president, as one of two directors. Field, one of Leo’s right-hand people on state courts at the Federalist Society, came aboard to help Thomas in her new endeavor.
Neither Field nor Mitchell responded to requests for comment.
The application was approved seven days before Clarence Thomas joined the 5-4 majority on a decision that would open the door to a new era of major spending on groups like the one his wife was forming. After putting up $500,000, the lion’s share of her nonprofit’s seed money, Crow held an event for Ginni Thomas at his palatial home in Dallas. The group later made clear its goal was disassembling President Barack Obama’s agenda, mainly the Affordable Care Act.
Justice Anthony Kennedy, a Ronald Reagan appointee, assumed in his majority opinion in Citizens United that donations and spending around such groups would be transparent. Justice Thomas, in his concurring opinion, argued against “forcibly disclosed donor information,” which could “pre-empt citizens’ exercise of their First Amendment rights.”
The Citizens United decision — which extended free speech rights to corporations, nonprofits and unions — effectively curbed efforts to rein in political spending, while paving the way for follow-up rulings from courts and the Federal Election Commission that would unleash additional billions of dollars in donations. Those donors would spawn a boom in tax-exempt “charitable” and “social welfare” groups as vehicles for spending on political activity.
A key part of the attraction to these groups was that they could shield the identity of donors, many of whom are reluctant to invite scrutiny of their own agendas.
Just five weeks after the decision, on Feb. 18, Ginni Thomas took the stage at CPAC, an annual gathering of the nation’s most prominent conservative activists. Wearing a white T-shirt emblazoned with a Liberty Central logo, Thomas introduced herself as an “ordinary citizen from Omaha, Nebraska” who felt “called to the front lines” of a battle against “arrogant elites” who “think they know how to manage our lives from cradle to grave.” She evoked the passing of “patriots,” including her 91-year-old mother and Barbara Olson, who had perished in the plane that hit the Pentagon on Sept. 11, 2001, as her inspiration.
“When she was gone, I knew I had to work harder,” Thomas said of Olson, whose widower, Ted, had been a lawyer for Citizens United.
Thomas did not credit Crow, Leo or the Citizens United decision for her new grassroots initiative. That year, she was paid $120,500 from Liberty Central, according to tax records.
The group was destined to have only a short lifespan, thanks in part to a misstep by Thomas. In October, she left a voicemail for Anita Hill, the woman who had accused her husband of sexual harassment during his confirmation hearings in 1991. In it, Thomas demanded an apology for the 19-year-old accusations.
“I would love you to consider an apology sometime and some full explanation of why you did what you did with my husband,” Thomas reportedly said, asking Hill to “pray about this.”
The ensuing news reports drew unwanted attention to Thomas’ new nonprofit, which by then was expressly targeting Obama and his agenda. The news led many ethics specialists to question whether it was appropriate for a Supreme Court justice’s spouse to be leading such a political effort, especially with the court preparing to consider a high-profile challenge to Obama’s health care initiative.