Brooke Gladstone This is On the Media. I'm Brooke Gladstone. Earlier this month, ProPublica broke news about Clarence Thomas and a Texas real estate tycoon.

News Clip For years, Justice Clarence Thomas has secretly accepted luxury gifts from a GOP mega-donor Harlan Crow.

News Clip He took these trips to places like New Zealand, Indonesia on private yachts, private jets.

News Clip A $500,000 trip to Indonesia one year.

News Clip Many of these trips went undisclosed on Thomas's ethics filing, despite that being required by law.

News Clip Clarence Thomas has also reported accepting gifts in 2000 to 1200 dollars worth of tires from an Omaha businessman. A Bible once owned by the abolitionist Frederick Douglass, which Thomas valued at 19,000 and a bust of President Lincoln valued at 15,000. It is the unreported largesse that is illegal. But to Corey Robin, journalist, professor and author of The Enigma of Clarence Thomas, none of it is surprising. Robin says that accepting these gifts, these friendships are of a piece with Thomas's most deeply held beliefs and his jurisprudence. Thomas always was open in his views a black nationalist who held that whites and blacks could never really be reconciled, and that the only path to power in America was to use the rowdiest tool at hand, one that could be wielded with relative equality. Money In a way. As you will hear, it has shaped his decisions on everything from the right to refuse to bake a cake for a gay wedding to campaign finance reform. In a piece this week in Politico, Corey Robin noted that corruption is far more amorphous and pernicious than a simple quid pro quo.

Corey Robin The way corruption often happens is that you have men of wealth and men of power who are part of a fraternity. They exchange words and they exchange ideas, and they gain each other's respect and trust. And Thomas is a particularly important person in that fraternity because he really believes in the worthiness and the legitimacy in the standing and in the stature of those men of wealth. He wants those men of wealth to play more of a role in our society. So he takes their words very, very seriously. The problem here is that Thomas not only doesn't really hide from that. He's created an entire jurisprudence that justifies that.

Brooke Gladstone These are men who already see pretty much eye to eye on the broad questions, right?

Corey Robin Absolutely.

Brooke Gladstone Thomas, you say is someone who believes in the moral authority of rich people and businessmen, which is quite interesting because Thomas's upbringing was not one of wealth and ease. And you would think that maybe he would see a moral authority, perhaps in poverty.

Corey Robin Not at all. And it's a very good question. One of the most important people in Thomas's life was his grandfather, Meyers Anderson, whom he came to live with when he was six years old. Thomas had lived for his first six years in tremendous poverty, but Meyers Andersen owned his own business, delivering wood and then coal and then finally oil to members of the black community in Savannah. Thomas, his grandfather, was able to build a solid middle class home for Clarence Thomas, and his brother put them through private schools and eventually amassed a bit of property and become a landlord. When Thomas thinks of wealth. He really thinks of people like Meyers Andersen. In other words, they began dirt poor. I think Meyers Andersen was maybe one or two generations removed from slavery himself. But they were able to build an institution that protected the members of the black community that came within its ambit. In a 1987 speech at a libertarian think tank in San Francisco, Clarence Thomas really set out his views about wealth and American politics. The center character was his grandfather, and Thomas's critique and attack on American liberalism was that it viewed men like his grandfather with scorn. He still has in his mind this stolid man of discipline, of limited wealth, who created a protective institution in which someone like Clarence Thomas could not only survive, but eventually thrive.

Brooke Gladstone You wrote that in the sixties and seventies, progressive lawmakers treated the freedom of political speech as sacrosanct and spent decades building legal protections around it. And in that, Thomas saw a chance to apply those same legal protections to business activities.

Brooke Gladstone Exactly. In the 1960s, then in the 1950s and 1970s, the Supreme Court and liberals came to a kind of settlement. Anything that the government did in terms of economic regulations, laws about business and all the rest of it, the Supreme Court would essentially give the executive branch and the legislature a pretty free hand. The idea being that these were legislative and political activities that did not rise to the level of constitutional scrutiny.. On the other hand, there was a sphere of activity that really did deserve constitutional protection. And the heart of those activities, the palladium of liberty, as it was called, was the freedom of speech. That words are our most intimate expression of who we are. We reveal ourselves as individuals, as citizens, through our speech. And so sacred is that an activity that we have to do everything we can in our society to protect it from the regulation and repression and constriction of the government and of the state, hence the First Amendment. And conservatives looked at that settlement and they thought to themselves, this really puts us in a bind because it means the business community can be regulated, strangled, constricted in all sorts of ways, and the Constitution has nothing to say about it. So what are we going to do? And the innovation of the conservative movement in the 1970s and Thomas articulates this very clearly in this 1987 speech, is that if we can reimagine the activity of the businessmen, the activity of the banker, not as economic activity, but as speech, perhaps that activity will then ascend in the moral imagination of America and ascend in its constitutional status, becoming something deserving of the protection of the Supreme Court. And where they begin this process is with advertising. Advertising, of course, is the form of speech. It involves words and images. When I was a kid mobile, the oil company would take out a quarter page ad on the op ed page. It was a learned exegesis of the value of fossil fuels. And the question is, is that an advertisement or is that political speech? And conservatives made the case, and the court eventually came around to this position that that kind of advertising is, in fact, political speech. That was like the Trojan horse. They started moving out from there to all different kinds of other things. So if we can jump ahead 30 years, we had that case coming out of Colorado, of the case maker, the wedding cake maker.

Brooke Gladstone Right.

Corey Robin The wedding cake maker did not want to make cakes for gay couples and that was primarily a religious freedom case. Thomas and Gorsuch wrote another opinion saying, in addition to violating religious freedom, this violated the free speech of the cake maker, because making a cake is like an artistic form of expression.

Corey Robin And you note that Elena Kagan recognized the dangers of this position in her dissent for Masterpiece Cakeshop versus Colorado's Civil Rights Commission. She said that the First Amendment was being weaponized

Corey Robin She went on to say in that dissent versus let's think about this, what part of the economy does not involve speech? You can. Can't fire someone without either putting it into writing or saying to them, You're fired. In fact, all of American business activity operates on the basis of written contracts. Kagan was saying, Look what's going on here. They're taking bit by bit pieces of the economy enveloping them in the fact that they come as speech acts. And then having done that saying now they all have to come up under the scrutiny of the First Amendment.

Brooke Gladstone And that under this approach, you suggest the constitutional and civilizational order of the New Deal could have been overturned.

Corey Robin Exactly. Because going back to that 1987 speech that Thomas gives, Thomas was talking about these midcentury liberals. He had people like John Kenneth Galbraith in mind. And what Thomas claimed was that they viewed money as really in bad form. I guess you could say that there was something unseemly about it. Instead, the people that they valued, these liberals, according to Thomas, were what Thomas called the idealistic professions journalists, professors, lawyers. And Thomas describes them as people who make their living by producing words. There's something about speech that is elevated in the mind of the liberal. This is really the original cultural war between the right and the left. Really a civilizational struggle over the status of the man of words and the man of money. And Thomas saw it as his project to re moralize the businessman and the banker to give them not just constitutional status, but cultural status.

Corey Robin So what might have been in Kagan's mind when she made that observation was the 1976 case, Buckley versus Valeo. That's a landmark case that ruled that limitations on campaign contributions are a legitimate means of eliminating the, quote, reality or appearance of corruption in the electoral process. And Thomas has spent decades successfully chipping away at this.

Corey Robin Exactly. There's this famous Wallace Stevens poem where he says money is a kind of poetry. And Thomas takes that very seriously. When we make a donation to a candidate, we're not simply assisting their campaign. We're expressing our values. And Thomas runs with that fact because he says, in modern politics, we're always doing this. Most American citizens, when they try to express their opinions in addition to voting, they have to speak through a medium. And you have a lot of small dollar donors who give their money to various campaigns in the hopes that speaking through that medium, their message will get out. And Thomas says that is the nature of democracy. That's why money is speech. But Thomas acknowledges that in American democracy, these campaigns are expensive. He says quite directly that costly campaigns require big donors. This is in McConnell versus Federal Election Commission, which was the case in 2003. He says the only effect that the immense aggregations of wealth will have on an election is that they might be used to fund communications to convince voters to select certain candidates over others. The corporations, he goes on to say on behalf of their shareholders, will be able to convince voters of the correctness of their ideas. He doesn't hide this anywhere. This isn't tucked in a footnote somewhere. This is a Supreme Court opinion. He is providing a roadmap here about why wealthy people, like everybody else, will seek to speak through their donations to convince candidates to take their positions and then ultimately to have those positions prevail in American government.

Corey Robin And you say that for too long, progressives have fought a losing battle to strengthen campaign finance laws, claiming that money isn't speech. Arguing that the Roberts Court and Citizens United are solely to blame. But that ship you say, had already long sailed. So what is the actual issue at hand?

Corey Robin So if we go back to that Buckley versus Valeo decision right there in that statement, which was coauthored by William Brennan and Thurgood Marshall, the two great liberal justices of the second half of the 20th century, they accepted the position. That money is speech that is in that decision. So, for instance, when a campaign spends money in that decision, the court rules those expenditures cannot be limited. Because if you were to limit those expenditures, you're essentially limiting the speech of a candidate or of a campaign. So one half of the political process that involves money, namely campaign expenditures, is completely off limits from government regulation. And there is another sentence in that opinion that says if you are going to limit and now we're talking about campaign contributions. And as you said earlier, you can limit contributions for the sake of protecting against the stench and taint and appearance of corruption. But what you cannot do is to limit campaign contributions for the sake of equalizing speech. If you're doing it to try to level the playing field, that violates the spirit of the First Amendment. We have there in the quote, money is speech on the one hand, and then on the other hand, the statement that you cannot regulate money for the sake of equalizing speech. That has been the settlement upon which liberals have been trying to construct a campaign finance regime that would protect democracy for money and failing to do so. And I think really requires us perhaps to rethink that approach.

Brooke Gladstone So have at it, Corey.

Brooke Gladstone I think the problem comes in that question about equality, which everybody on the court, from the liberals to conservatives, took off the table because if money is speech, then there is no way that the voices of those of us who are small donors, the individual voices, will ever be the equivalent of the voice of a Harlan Crow. The real issue is the distribution of money in the economy.

Brooke Gladstone That's a really long and rocky road.

Corey Robin It certainly is. However, it's a road that has been trodden many times before going back to the foundation of the American Republic. People like Noah Webster, who gave us our dictionary, were very alert to the problem of concentrations of wealth. It would be essentially impossible to have a republic or a democracy when there were concentrations of wealth. And over the course of the 20th century. We didn't do a great job, but we did a decent job in leveling those concentrations such that the distance between the poorest person in America and the wealthiest person was imaginable. Let's say it was a span that one could imagine. Today, that distance is unimaginable. And we come back to this question of money and speech. If Noah Webster could say we're never going to have a democracy, if some people have a lot more money than others and a lot more wealth and property.

Brooke Gladstone He said that without equal distribution of wealth and power, liberty expires.

Corey Robin Exactly. No freedom unless there is equal freedom for all. This Harlan Crow scandal has really opened up not just how much money wealthy people have, it's how much money is required for them to have the access. So I think this is an opportunity not to have the same old discussion about campaign finance reform.

Brooke Gladstone But that at least is possible in order to reduce the astronomical distance between the rich and poor would require the sorts of regulations that would probably be impossible now because they would be seen as impinging on the speech of business.

Corey Robin Yeah, I agree. That's exactly what needs to be taken on. If you can point out that in a way, Clarence Thomas and the right have charted our course for us when they claim that money was speech. If that is true, you cannot have a democracy in the political sphere unless you democratize the distribution of money in the economic sphere. When we engage in questions of distribution, in the economic sphere, when we are battling over things like the minimum wage and all these other things, we're not just dealing with economic questions. These are cultural questions. These are who gets to talk in our society. I mean, we do have a very sophisticated discourse, for instance, around the question of race and whose voices get heard in the media. The one thing we have not really had a reckoning on that question of who gets to speak and who gets heard is the question of money.

Brooke Gladstone In the fallout from the ProPublica report. Progressives have called for a hearing regarding Thomas's actions, maybe even his impeachment. What's your take on that?

Corey Robin I don't. Think it'll go anywhere. From the very beginning, the man had the taint of illegality. Almost everybody who has studied this issue knows that he committed perjury before the Senate when testifying about Anita Hill. That, in the end, didn't do anything to affect his career on the court. In a few years, he will be the longest serving justice in American history. These kinds of allegations and charges don't really make a dent in him because he now has at least four brethren on the court who are willing to side with him. His power only grows.

Brooke Gladstone This friendship between Clarence Thomas and Harlan Crow necessarily implies that rich people are heard more than poor people.

Corey Robin You know, we have a tradition of one person, one vote, and the premise of that tradition is that nobody is worth more than anybody else. And that was a long and hard fought battle, fought through questions of slavery, fought through the question of the denial of the vote to women and so on. And we won that battle. The most grievous assault and undoing of that battle has been, I would argue, these decisions about the value of the man of money, that he is, in fact, worth more, not just in the economic sphere, but in the political sphere. That has been the work of Clarence Thomas. And if we hope to have any kind of a democracy, that work has to be undone.

Brooke Gladstone Corey, thank you very much.

Corey Robin Thank you.

Brooke Gladstone Corey Robin is a political theorist and journalist, and he is the author of The Enigma of Clarence Thomas.

That’s it for this week’s show. On The Media is produced by Micah Loewinger, Eloise Blondiau, Molly Schwartz, Rebecca Clark-Callender, Candice Wang and Suzanne Gaber, with help from Temi George. And our show was edited by me. Our technical director is Jennifer Munson. Our engineers this week were Andrew Nerviano and Sham Sundra.

Katya Rogers is our executive producer. On the Media is a production of WNYC Studios. I’m Brooke Gladstone.

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