Center for Competitive Politics Chairman Bradley A. Smith authored an essay in The American Spectator‘s May 2010 issue examining the jurisprudence of Citizens United v. Federal Election Commission as well as pending legislation and litigation on campaign finance matters:
On reargument last September, Solicitor General Elena Kagan tried to control the damage, arguing that the government never actually had tried to censor books, even as she reaffirmed its claimed authority to do just that. She also stated that “pamphlets,” unlike books, were clearly fair game for government censorship. (Former Federal Election Commissioner Hans von Spakovsky has noted that in fact the FEC has conducted lengthy investigations into whether certain books violated campaign finance laws, though it has not yet held that a book publisher violated the law through publication. And the FEC has attempted to penalize publishers of magazines and financial newsletters, only to be frustrated by the courts.) With the endgame of “campaign finance reform” finally laid out plainly, the Supreme Court’s decision seemed a foregone conclusion. Sure enough, in January, the Court ruled that corporations, as associations of natural persons, have a right to spend funds from their general treasuries to support or oppose political candidates and causes — including through the publication or distribution of books and movies.
President Barack Obama is reportedly on the cusp of nominating a replacement for Citizens United dissenting opinion author Justice John Paul Stevens, and the posture of U.S. Solicitor General Elena Kagan on First Amendment issues will be under scrutiny as the President attempts to stoke populist angst about corporate influence in politics*.
We should certainly note that the S.G.’s role is to defend the government’s position in court, not necessarily to advocate for his or her policy preferences (e.g. Ted Olson defended McCain-Feingold for the government in McConnell v. FEC and successfully argued Citizens United).
Kagan’s personal views on campaign finance seem only slightly less murky than other policy issues. Of the nine academic papers listed on her Harvard Law School bio, a majority (five) address First Amendment jurisprudential issues. Yet, it’s anyone’s guess as to what Ms. Kagan thinks about substantative issues regarding campaign finance regulation and political speech.
Former Center for Competitive Politics Legal Director Reid Cox analyzed Kagan’s record in a May 1 post last year, when the parlor game surrounding retired Supreme Court Justice David Souter was in full swing:
… Kagan—formerly the dean, and on leave from being a professor, at Harvard Law School—appears to be open-minded (and maybe even moderately pro-speech and anti-regulation). In one of her seminal law review articles entitled “Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine,” Kagan engages in an extended discussion about why the Supreme Court has cast a skeptical eye on “[l]aws ‘equalizing the speech market.” Using Buckley‘s holding that that “the concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment” as an example, Kagan goes on to explain:
“The ease with which improper purpose can taint a law directed at equalizing expression together with the difficulty a reviewing court will have in detecting this taint account for the Court’s approach in cases like Buckley. The reason for the approach is not that the goal of equalization itself conflicts with the First Amendment (though the Court often speaks in this manner); [t]he reason for the approach is instead that the goal of equalization often and well conceals what does conflict with the First Amendment: the passage of laws tainted with ideological, and especially with self- interested, motivations. … [I]n Justice Scalia’s words: ‘The incumbent politician who says he welcomes full and fair debate is no more to be believed than the entrenched monopolist who says he welcomes full and fair competition.’ The harsh treatment of laws directed at correcting distortion, even when these laws are framed in content-neutral language, arises from the fear that if the usual standards of review applied, legislators would use these laws as a vehicle for improper motive, and courts would bless what the First Amendment proscribes.”
That is quite a mouthful, and I am not at all sure that I agree the goal of leveling the speech playing field does not, in and of itself, conflict with First Amendment principles. But the fact remains that Kagan’s discussion shows that, hopefully, she may be open to persuasion, or even already somewhat persuaded, that the government should stay out of the game of regulating political speech as much as it can.
Of course, all of this comes with the caveat Kagan wrote at the outset that her article “is primarily a descriptive theory; although I discuss its normative underpinnings, I make no claim that a sensible system of free speech should be concerned exclusively with governmental motivation.” In other words, we cannot read too far into the article that its discussion would represent Kagan’s view of what the law should be as a judge, as opposed to what is appears to be as an academic observer.
In President Obama’s remarks following the retirement announcement of Justice Stevens, he endorsed a litmus test on campaign finance views: He said Stevens’ replacement should have “…a keen understanding of how the law affects the daily lives of the American people. It will also be someone who, like Justice Stevens, knows that in a democracy, powerful interests must not be allowed to drown out the voices of ordinary citizens.”
Perhaps the burning question, considering Senate Majority Leader Harry Reid has reportedly promised to bring the Schumer-Van Hollen campaign finance bill to the floor by Independence Day (which would overlap with the confirmation process), is whether Kagan holds the view that the government may censor political books, movies and other media. Don’t hold your breath for a specific answer…
* Politico, among others, reported that White House aides suggest Kagan remains the prohibitive front-runner for the nomination, although others—including U.S. Court of Appeals Judge Diane Wood—appear to still be in the mix. The conventional wisemen in the Beltway press and punditocracy expect an announcement Monday or Tuesday.
