Kagan, Campaign Finance, and Banning Books

While “Reformers” Dissemble, Senator McConnell is Raising the Right Questions

Last week we noted that Common Cause President Bob Edgar criticized Senator Mitch McConnell for using “inflammatory” language and unfairly distorting the record of Supreme Court nominee Elena Kagan by selectively quoting from the record in Citizens United v. Federal Election Commission.  In that case, Solicitor General Kagan, on behalf of the U.S. government, argued that the government had the power to ban books and movies if they were produced or distributed by corporations, at least as long as Congress had made findings that they were a source of “corruption” of the political process.  Senator McConnell has been, understandably, highly critical of this position, and thinks it is something worth discussing as the Solicitor General is considered for a lifetime appointment to the nation’s high court.

On Friday, perhaps the best-known advocate of campaign finance “reform,” longtime lobbyist Fred Wertheimer, added his voice to the fray, accusing Senator McConnell of “distort[ing] the truth” about Kagan’s record.  What’s interesting to us is that Wertheimer makes only a passing effort to even argue that anything Senator McConnell has said “distort[s] the truth,” prefering to attack Senator McConnell personally.  But before turning to Mr. Wertheimer’s own distortions and attacks on the Senator, let’s examine what the Senate Minority Leader actually said.

After pointing out that the Obama Administration had imposed a gag order on insurance companies to prevent them from informing Medicare enrollees about how the President’s health care bill would affect Medicare coverage, Senator McConnell noted that the Administration had also supported limits on speech in Citizens United.

The Senator described the case thusly: “Citizens United turned on the question of whether the federal government could ban a non-profit corporation from producing a movie critical of former Senator Hillary Clinton and attempting to air it just prior to the 2008 Democratic primary.”  Now, that is a correct statement of the issue in Citizens United—could Citizens United, a non-profit corporation, air via video on demand a movie it had produced about Hillary Clinton within 30 days of a Democratic presidential primary?  The government said no, it could not.  It could, said the government, use an affiliated entity—Citizens United Political Victory Funds—to produce and air the movie, provided that CUPVF wanted to produce and air the movie, had the money to do so (money which could only be raised in government approved amounts and from government approved sources), did not want to spend the money on something else, and complied with the hundreds of pages of federal regulations that govern political action committees.   But Citizens United itself could not air the documentary.

Senator McConnell went on to note that, “Ms. Kagan’s office, and Ms. Kagan herself, argued that the federal government had the power to regulate — and if need be, to ban — large amounts of political speech.”  Again, this is an indisputably true statement.  Indeed, at the core of the campaign finance “reform” movement is the intent to ban large amounts of political speech on the grounds that such speech both corrupts American politics, and is contrary to ideals of equal political participation.  Lobbyist Wertheimer has spent most of his adult life arguing precisely, and with vigor, vehemence, and boundless energy, that too much political speech poses a serious threat to democratic self-government.  Given the government’s position in the case—that it could prohibit the airing of a political documentary movie—there can be no dispute here.

In other words, because Solicitor General Kagan argued in the Supreme Court that political pamphlets can be banned if the government doesn’t like the pamphleteer—or at least its corporate identity—Senator McConnell is concerned that Solicitor General Kagan may believe that political pamphlets can be banned if the government doesn’t like the pamphleteer.  And Mr. Wertheimer believes that the Senator’s concern is “ridiculous.”

The Senator continued: “During the first argument, the Court asked Ms. Kagan’s deputy whether the government had the power to ban books if they were published by a corporation, and if the books urged the reader to support or defeat a candidate for office. He said yes, the government could ban a corporation from publishing a book—even if it only mentioned the candidate once in 500 pages.”  Again, Senator McConnell is correct.  You can read the transcript here (p. 30),  where Deputy Solicitor General Malcolm Stewart say, “[W]e could prohibit the publication of the book using the corporate treasury funds.”

Continued Senator McConnell in describing the oral argument: “Not surprisingly, this contention prompted quite a bit of discussion among the justices. They wanted to be clear that that’s actually what Ms. Kagan’s office was proposing. So, to remove any doubt about their position, Ms. Kagan’s deputy said he wanted to make it, in his words, ‘absolutely clear’ that the government did, in fact, have the power to ban certain speakers from publishing books that criticized candidates. Justice Souter asked if that meant labor unions, too. Ms. Kagan’s deputy said that indeed it did.” Again, the Senator’s description is accurate—see pgs. 33 and 35-36 of the transcript.

McConnell noted that a stunned Court asked to have the case reargued.  He continues, “This time, Ms. Kagan herself appeared on behalf of the government.  And this time, it was Justice Ginsburg who noted that at the first argument, Ms. Kagan’s office argued that the federal government could, in fact, ban books, such as ‘campaign biographies,’ despite the protections of the First Amendment.”

“Justice Ginsburg asked whether that was still the government’s position. Ms. Kagan responded that after seeing the reaction of the Supreme Court to her office’s argument, they had re-thought their position. Ms. Kagan maintained that while the federal law in question did apply to materials like ‘full-length books,’ someone probably would have a good First Amendment challenge to it.”

So far so good.

“But her fall-back position was that the same law gives the government the power to ban pamphlets, regardless of the First Amendment’s protection for free speech. This caused the justices to bristle again. One justice asked where, in Ms. Kagan’s world, does one ‘draw the line’?”

“First her office says it’s okay for the government to ban books if it doesn’t like the speaker; then it says it’s okay to ban pamphlets if the government doesn’t like the pamphleteer.”

Well, all of that is, in fact, accurate.  You can read the transcript here (see pages 64-68).  The only quibble one might have is that Kagan clearly did not mean to say that government could ban the speech because it did not like the particular views expressed.  But really, that’s not even a quibble, but proof that Senator McConnell was speaking carefully, because the Solicitor General’s position was that it could ban speech if it did not like—as Senator McConnell said—the speaker, i.e. the fact that it was a corporation.

Indeed, Senator McConnell may have been too kind to the Solicitor General, because the Solicitor General pretty clearly held that the government might ban books if they were found to be a source of corruption.  She simply argued that that finding had yet to be made, and if it were, well, someone could also defend themselves from government prosecution in any particular case;  see p. 67.  Further left unsaid was that as other avenues of speech are closed off, it would become more likely that speakers would turn to books, thus raising the possibility that Congress would find them to be a source of corruption.

Having established what Senator McConnell said, what is lobbyist Wertheimer’s response? It’s this: “Solicitor General Kagan was also asked about whether the statute could cover pamphlets and she correctly noted that campaign pamphlets were a classic form of electioneering and that such electioneering pamphlets could be covered.”  (“Covered” is Mr. Wertheimer’s euphemism for “banned under the statute.”).  Continues Wertheimer, “From this statement, Senator McConnell now charges that Solicitor General Kagan believes that ‘it’s OK to ban pamphlets if the government doesn’t like the pamphleteer.'”  

In other words, because Solicitor General Kagan argued that political pamphlets can be banned if the government doesn’t like the pamphleteer—or at least its corporate identity—Senator McConnell is concerned that Solicitor General Kagan may believe that political pamphlets can be banned if the government doesn’t like the pamphleteer.  And Mr. Wertheimer believes the Senator’s concern is “ridiculous.”  Continues the lobbyist, “All the Solicitor General said, and what is obviously correct, is that campaign finance laws apply to campaign materials, including campaign pamphlets.”  In other words, Mr. Wertheimer agrees that the government should be able to ban political speech—in this case pamphlets—because it doesn’t like the corporate identity of the speaker.  Call me naive, but I think Mr. Wertheimer just conceded the argument.

Perhaps Wertheimer himself recognizes that he’s lost he argument, because most of his broadside consists of personal attacks on Senator McConnell, and non-sequiturs.  For example, he complains that Senator McConnell didn’t “attack” then Solicitor General Ted Olson when Olson defended the same provisions of the statute in the Supreme Court.  Of course, Olson never specifically claimed the power to ban books, but more to the point, Olson has never been nominated to another government position since making such arguments.  Wertheimer does note that Senator McConnell later hired Olson to represent him in other campaign finance litigation, which seems to further contradict Wertheimer’s points—we must assume that McConnell asked Olson at that point about Olson’s own views, and got a satisfactory answer.  Nothing wrong with asking Solicitor Kagan for her views, now that she looking at a lifetime appointment to the Court.  Wertheimer also whines that Senator McConnell “has made a career out of attacking campaign finance laws and using obstructionist tactics to block campaign finance legislation.”  Quite right.

Wertheimer then complains that the voters disagree with the Citizens United decision, citing to a Quinnipiac poll that asked voters if they approved of allowing corporations to fund ads “attacking” candidates.  But Wertheimer seems to sense he is on weak ground based on biased questions.  For example, a poll conducted for CCP found that by a three to one margin, voters agreed that Citizens United had a constitutional right to air its documentary movie, and an earlier Rasmussen poll, taken before Citizen United, found that a comfortable plurality of voters agreed that it would be good for the country if the Court struck down campaign finance regulations.  But whatever the polls say—and Wertheimer surely understands the reality that public opinion on campaign finance laws is mixed and highly susceptible to language—one also must question if the Court’s opinions should be guided by the polls or the Constitution.  Wertheimer seems to prefer polls, as long as he is selecting which polls to follow, and applying the interpretation.  But if he’s so convinced the public is with him, why does he find Senator McConnell’s comments so unnerving?  Again, we suspect that Mr. Wertheimer knows that public oposition to Citizens United depends on avoiding the inconvenient fact that the government argued that it has the power to ban books – a position that Mr. Wertheimer seems to favor himself.

In short, as we noted in response to the attack on Senator McConnell by Common Cause’s Bob Edgar, the transcripts of the oral arguments in Citizens United show that Senator McConnell’s statements are accurate.  It is the “reformers” who seek to obscure the truth.  Why?  We think it is because, deep down, they understand that if necessary to thwart “corruption,” they would ban books.  That is the thrust of their argument, and it’s what came out in Citizens United.  They know that that is a political loser, however.  So they’ve decided to attack the messenger.

The Center for Competitive Politics is now the Institute for Free Speech.