Kagan v. Kagan: Senators must press Kagan to explain views on First Amendment political rights

As Solicitor General Elena Kagan prepares to answer questions today at her Senate Judiciary Committee nomination hearing, the Center for Competitive Politics has released a policy analysis of her campaign finance background showing an apparent contradiction between her past and present views.

The analysis, “Kagan v. Kagan: Campaign Finance, Congress and the Court,” authored by Center for Competitive Politics Vice President of Policy Allison Hayward, examines Kagan’s advocacy as Solicitor General in Citizens United v. Federal Election Commission, her policy work as an aide in the Clinton administration and her First Amendment writings as a law professor.

In Kagan’s 1996 article, Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine, she “explicitly recognized that ‘campaign finance laws… easily can serve as incumbent-protection devices’ and when applied to certain speakers ‘the danger of illicit motive becomes even greater,'” Hayward wrote in the policy analysis.

“It is impossible to square Kagan’s analysis in this article with her recent comments that the Supreme Court should have deferred to Congress in Citizens United,” Hayward said. “Americans deserve to know which version of Kagan’s views will receive a lifetime platform on the bench of the Supreme Court.”

This question takes on added importance as the Senate considers the “DISCLOSE Act,” a bill seeking to effectively reverse Citizens United that the House passed 219-to-206 last week. DISCLOSE would carve out disclosure exemptions for labor unions and the most powerful special interest groups while prohibiting the political speech of certain companies.

Sen. Arlen Specter (D-Penn.) said this week he wants to know whether Kagan “would give deference to congressional findings of fact, such as those that underlie the long-standing ban on corporate money in campaigns.” In May, Kagan reportedly told Sens. Specter and Olympia Snowe (R-Maine) that the Court in Citizens United didn’t show “sufficient deference to Congress.”

Remarkably, the House struck the “findings” of the DISCLOSE Act (after intense criticism that, unlike McCain-Feingold, the findings contained political rhetoric rather than a factual record). No one expects Kagan to answer specific questions on how she might rule on a potential challenge to the DISCLOSE Act. However, it’s essential to allowing the Senate to provide “advise and consent” that Kagan answer basic questions about her judicial philosophy, such as whether the First Amendment provides for broad deference to Congress in crafting political speech regulations.

“Documents from the Clinton administration archives show that Elena Kagan helped craft campaign finance laws with partisan politics in mind,” said Center for Competitive Politics Chairman Bradley A. Smith. “Senators must press Kagan on whether she now thinks congressional incumbents should be trusted with restricting political speech or if the First Amendment trumps this self-dealing.”

In their opening statements at the Senate Judiciary Committee hearing Monday, most Democratic Senators railed against the Citizens United decision-calling it an act of judicial activism without regard for precedent. But Kagan, as Solicitor General, abandoned the rationale of Austin v. Michigan Chamber of Commerce and instead advanced a new theory that the government could restrict political speech because it might cause corruption. Kagan argued that this expansive theory would allow Congress to ban pamphlets and movies if published by a corporation. Kagan’s advocacy in Citizens United on behalf of the government—mentioned by President Barack Obama as a reason he selected Kagan for the High Court—seems at odds with her past writings on campaign finance issues.

In her opening statement, Kagan obliquely referenced this issue, saying the Court must be “properly deferential to the decisions of the American people and their elected representatives.”

“Integrity and independence are among the most important characteristics for a Supreme Court Justice, and additional inquiries to resolve this quandary would bring meaningful heft to often ‘vapid’ confirmation hearings, as Kagan herself once articulated,” Hayward wrote.

The Center for Competitive Politics is a nonpartisan, nonprofit group dedicated to protecting First Amendment political rights. CCP seeks to promote the political marketplace of ideas through research, litigation and advocacy.

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