Common Cause President Bob Edgar is inflamed because Senator Mitch McConnell “recently said in a Senate floor speech that it is the ‘position of the Solicitor General and her office’ that the federal government has the power to ‘ban books.'” Not true! claims Mr. Edgar. “[T]his sort of inflammatory language grossly misrepresents General Kagan’s position.”
Does it? Let’s start with Ms. Kagan’s office. Here is the relevant part of the transcript of the oral argument in Citizens United v. Federal Election Commission on March 24, 2009. Arguing for the government is Deputy Solicitor General Malcolm Stewart, an experienced Supreme Court and campaign finance litigator. The question was whether the government could prohibit the plaintiff, Citizens United, from airing a documentary film about Hillary Clinton because Citizens United is a corporation.
Justice Alito: What’s your answer to Mr. Olson’s point that there isn’t any constitutional difference between the distribution of this movie on video demand and providing access on the Internet, providing DVDs, either through a commercial service or maybe in a public library, providing the same thing in a book? Would the Constitution permit the restriction of all of those as well?
Mr. Stewart: –I think the the Constitution would have permitted Congress to apply the electioneering communication restrictions to the extent that they were otherwise constitutional under Wisconsin Right to Life. [Wisconsin Right to Life upheld the right of the government to limit certain ads aired within 60 days of a general election or 30 days of a primary if they were susceptible to no other reasonable interpretation than as a call to vote for or against a particular candidate. – Ed.] Those could have been applied to additional media as well. …
Justice Alito: That’s pretty incredible. You think that if if a book was published, a campaign biography that was the functional equivalent of express advocacy, that could be banned?
Mr. Stewart: –I’m not saying it could be banned. I’m saying that Congress could prohibit the use of corporate treasury funds and could require a corporation to publish it using its PAC.
Justice Alito: Well, most publishers are corporations. And a a publisher that is a corporation could be prohibited from selling a book? … The government’s position is that the First Amendment allows the banning of a book if it’s published by a corporation?
Mr. Stewart: –Because the First Amendment refers both to freedom of speech and of the press, there would be a potential argument that media corporations, the institutional press, would have a greater First Amendment right. That question is obviously not presented here. The the other two things–
Justice Kennedy: Well, suppose it were an advocacy organization that had a book. Your position is that under the Constitution, the advertising for this book or the sale for the book itself could be prohibited within the 60/30-day period [before an election or primary]?
Mr. Stewart: –If the book contained the functional equivalent of express advocacy. That is, if it was subject to no reasonable interpretation–
Justice Kennedy: And I suppose it could even – is it the Kindle where you can read a book? I take it that’s from a satellite. So the existing statute would probably prohibit that under your view?
Mr. Stewart: –Well, the statute applies to cable, satellite, and broadcast communications. And the Court in McConnell has addressed the–
Justice Kennedy: Just to make it clear, it’s the government’s position that under the statute, if this Kindle device where you can read a book which is campaign advocacy, within the 60/30-day period, if it comes from a satellite, it’s under it can be prohibited under the Constitution and perhaps under this statute?
Mr. Stewart: –It it can’t be prohibited, but a corporation could be barred from using its general treasury funds to publish the book and could be required to use to raise funds to publish the book using its PAC.
… Chief Justice Roberts: If it’s a 500-page book, and at the end it says, and so vote for X, the government could ban that? …
Mr. Stewart: –Yes, our position would be that the corporation could be required to use PAC funds rather than general treasury funds.
Chief Justice Roberts: And if they didn’t, you could ban it?
Mr. Stewart: If they didn’t, we could prohibit the publication of the book using the corporate treasury funds.
But Ms. Kagan had only been the Solicitor General for a few days at the time of Mr. Stewart’s argument, so perhaps it is unfair to tar her with that argument. Thus, here is Ms. Kagan, re-arguing the case in September of 2009:
Justice Ginsburg: May I ask you one question that was highlighted in the prior argument, and that was if Congress could say no TV and radio ads, could it also say no newspaper ads, no campaign biographies? Last time the answer was, yes, Congress could, but it didn’t. Is that still the government’s answer?
Solicitor General Kagan: –The government’s answer has changed, Justice Ginsburg. … We went back, we considered the matter carefully, and the government’s view is that although 441b does cover full-length books, that there would be quite good as-applied challenge to any attempt to apply 441b in that context. And I should say that the FEC has never applied 441b in that context. [This is a bit misleading. Although we are aware of no case in which the FEC has penalized the publication of a book, it did spend nearly two years investigating a complaint about a book by George Soros issued during the 2004 presidential campaign, before dismissing the complaint on a 3-3 vote. See MUR 5642. – Ed] …
Chief Justice Roberts: But we don’t put our First Amendment rights in the hands of FEC bureaucrats; and if you say that you are not going to apply it to a book, what about a pamphlet?
Solicitor General Kagan: I think a pamphlet would be different. A pamphlet is pretty classic electioneering, so there is no attempt to say that 441 b only applies to video and not to print. It does–
Justice Alito: Well, what if the particular movie involved here had not been distributed by Video on Demand? Suppose that people could view it for free on Netflix over the internet? Suppose that free DVDs were passed out. Suppose people could attend the movie for free in a movie theater; suppose the exact text of this was distributed in a printed form. In light of your retraction, I have no idea where the government would draw the line with respect to the medium that could be prohibited.
Solicitor General Kagan: –Well, none of those things, again, are covered.
Justice Alito: No, but could they? Which of them could and which could not? I understand you to say books could not.
Solicitor General Kagan: Yes, I think what we’re saying is that there has never been an enforcement action for books. Nobody has ever suggested – nobody in Congress, nobody in the administrative apparatus has ever suggested that books pose any kind of corruption problem, so I think that there would be a good as-applied challenge with respect to that.
Justice Scalia: So you’re a lawyer advising somebody who is about to come out with a book and you say don’t worry, the FEC has never tried to send somebody to prison for this. This statute covers it, but don’t worry, the FEC has never done it. Is that going to comfort your client? I don’t think so.
Justice Ginsburg: But this statute doesn’t cover – It doesn’t cover books.
Solicitor General Kagan: No, no, that’s exactly right. The only statute that is involved in this case does not cover books. So 441b which–
Chief Justice Roberts: Does cover books.
Solicitor General Kagan: –which does cover books, except that I have just said that there would be a good as-applied challenge and that there has been no administrative practice of ever applying it to the books.
So as we understand Solictor General Kagan, she argues that 1) yes, the government has the constitutional authority to ban books if they are published or distributed by a corporation – movies, too; but 2) the government never has censored books (she appears unaware of MUR 5642), but 3) it could if Congress made findings that books are corrupting the political process, in which case 4) a group such as Citizens United could take a risk and publish such a book, and challenge enforcement on the grounds that the statute was unconstitutional “as applied” in its case. And 5) pamphlets (is Thomas Paine’s Common Sense a pamphlet or a book) can be banned.
I think that’s pretty much an argument that the government has the power to ban books, ameliorated only by the request to “trust us, while we may want to ban movies – as in the Citizens United case – and pamphlets, we wouldn’t actually ban books – at least not without a finding that they are ‘corrupting.'” I’d say Senator McConnell got it right. And the question is, was she just representing her client, or is this what she really believes?
Meanwhile, we can’t help but note that Common Cause and Mr. Edgar expressed no concern about “civility” and “inflammatory language” when, during the State of the Union Address, President Obama falsely claimed that Citizens United would allow “foreign corporations” to spend unlimited sums in U.S. elections. But perhaps Mr. Edgar had taken enough ibuprofin before watching the State of the Union that night that he didn’t notice the “inflammation.”