Kagan’s chalky campaign finance views

May 12, 2010   •  By Brad Smith
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Buckley Chalk

The views of Solicitor General Elena Kagan have been described by commentators on the left and right as vague at best, and she’s been characterized as a “blank slate.” Perhaps a more apt term, especially on campaign finance, would be a chalky slate. She’s written on First Amendment issues perhaps more than any other issue, she’s argued a major case—Citizens United v. Federal Election Commission—before the Supreme Court, and she’s authored memos on campaign finance issues while working as a domestic policy aide in President Bill Clinton’s administration. However, like the professor Kagan was, her views seem to be as messy as a primary school chalk board—subject to frequent revision and written for others or with a detached level of advocacy.

The William J. Clinton Presidential Library has released documents on its website authored or co-authored by Kagan, who President Barack Obama nominated to the Supreme Court this week.

These documents are related to the files of Bruce Reed, assistant to President Clinton for domestic policy. The file of interest to First Amendment advocates is a memo for former Chief of Staff Leon Panetta on “Possible Q&A on President’s Campaign Finance Reform Announcement.” The document was authored by Kagan and five other domestic policy aides. Other campaign finance memos Kagan has authored or co-authored still remain under wraps.

The memo appears designed to support and explain President Clinton’s position on an early version of McCain-Feingold (the bill of campaign finance restrictions Congress ultimately passed in 2002)—it’s written in that style and not in an advocacy style.

It’s still not clear what Elena Kagan really thinks about campaign finance issues.

“She did not, however, develop much of her own vision for domestic policy, her colleagues and outside policy specialists said. She retained the mind-set of the legal counsel who was carrying out the will of her client, the president,” according to The Washington Post.

Given these memos, though, along with President Obama’s strong words on Citizens United (citing it as a central reason he tapped Kagan), it’s fair to assume that Kagan will approach campaign finance issues from the perspective that most regulations are constitutional.

It also seems fair to assume that President Obama would not be making Citizens United a central element of Kagan’s nomination if he hadn’t received some assurances that she generally shares his views on campaign finance regulation.

Nonetheless, her 1996 law review article discussing Austin v. Michigan Chamber of Commerce at least provides some evidence that she’s willing to balance campaign finance regulations against First Amendment interests and suspect the motive of incumbents writing campaign finance laws.

Would Kagan support overturning Buckley v. Valeo?
The most troubling aspect of the Clinton-era memos (despite the brush off by Prof. Rick Hasen) is its radical recommendation for overruling the foundation of modern First Amendment jurisprudence on campaign finance. According to the memo:

“QUESTION: Doesn’t a ban on contributions from non-citizens raise constitutional difficulties?”

[Apart from the narrow question asked, the response is a very broad jurisprudential opinion about money in politics.]

“RESPONSE: It is unfortunately true that almost any meaningful campaign finance reform proposal raises constitutional issues and will provoke legal challenge. This is inevitable in light of the Supreme Court’s view — which we believe to be mistaken in many cases — that money is speech and that attempts to limit the influence of money on our political system therefore raise First Amendment problems. We think that even on this view, the Court should approve this measure because of the compelling governmental interest at stake. But we also think the Court should reexamine its premise that the freedom of speech guaranteed by the First Amendment always entails a right to throw money at the political system.”

This appears to be a central assault on the Supreme Court’s holding in Buckley v. Valeo, the modern foundation of campaign finance law.

Overruling Buckley would be exponentially more radical than overruling Austin v. Michigan Chamber of Commerce and a portion of McConnell v. FEC (as the Court did in Citizens United). The premise that spending money on political speech is protected under the First Amendment (at least to some degree) is a widely accepted notion even for many self-styled reformers.

No one argues that money is literally speech. That’s a straw man. Advocates of First Amendment political rights argue that money is required to speak to a mass audience of citizens and that limiting the money spent on politics—especially independent expenditures not coordinated with candidates—limits the ability to speak about politics. If the government were to limit the ability of corporations or individuals to invest in newspapers, who would really argue that those restrictions would not be First Amendment violations?

Partisanship of incumbents writing campaign finance laws
The partisan tone of the memos is striking but unsurprising as it’s fairly typical of White House memos and congressional policy memos, but the degree to which a lot of the memo addresses how McCain-Feingold would impact Democrats vis-a-vis Republicans provides credence to our contention that the majority party is usually foremost concerned with writing campaign finance laws in a way that entrenches incumbents and bolsters their own political party. The White House seemed cognizant of this and wants to limit partisan posturing, which is an interesting contrast to how Congress is proceeding with the DISCLOSE Act.

Even so, every single argument (bundling generally, an exception for “ideological groups,” raising funds in home states, and the bill overall) in another campaign finance memo Kagan joined begins and ends with a single question: will this hurt or help Democrats?

The political motivations of the White House in the timing of the memos is also interesting. The Q&A is almost exclusively focused on providing cover for the Clinton Administration following a scandal about foreign contributions to the Democratic National Committee.

The Democrats accepted large soft money donations sent to the party from foreign donors. Because the money was not used for express advocacy, the Democrats argued that it was not covered by the ban on foreign political donations (a defensible legal position at the time).  However with parties now prohibited from accepting soft money, no foreign money can go to the parties.  And with the limits on foreign contributions extended to electioneering communications, this is not an issue in 2010.  There is no doubt—even under the “DISCLOSE Act”—that foreign corporations can spend unlimited sums lobbying and on issue ads; and that U.S subsidiaries can lobby, run issue ads, and operate a PAC. So all that DISCLOSE would restrict would be issue ads that also qualify as electioneering communications under the new, burdensome, time-lengthened definition of electioneering communications. 

‘Foreign’ and ‘outsider’ independent speech protected by the First Amendment?
As an undergraduate at Princeton University, Kagan wrote opinion columns for the Daily Princetonian, or the “Prince.” An unsigned piece during her reign as editorial chairman focuses on the First Amendment in an academic setting.

The editorial, “Princeton and the First Amendment,” Kagan argues that a “university … ought to promote and encourage the free exchange of ideas.” The editorial challenged Princeton’s position in a case before the New Jersey Supreme Court. The university sought to “control campus discussion of important issues by limiting the access of outsiders to the university.” Kagan wrote this piece (or approve it) over 30 years ago, but it’s an interesting look back at her First Amendment views.

“What frightens us is that the university, in its legal brief and oral arguments, has asserted that it has an absolute right to restrict the activities of outside political organizations and speakers—that it could, in fact, properly and constitutionally forbid such activities if it so desired…” Kagan wrote.

“We see no reason why the courts should not also be able to compel Princeton’s acceptance of the First Amendment rights of outside groups to engage in political speech on the university campus. No essential freedom of the university would thereby be curtailed… Adam Smith once wrote that universities were ‘sanctuaries in which exploded systems and obsolete ideas find shelter and protection.’ If the university’s claim of total authority to regulate, or even to forbid, the political speech of outside organizations is upheld, Princeton will move a large step closer toward living up to Smith’s definition.”

The Adam Smith-quoting Kagan of yore held a robust view of the First Amendment and the speech of non-citizens and disfavored groups in liberal academia. Has her position evolved on this or is political speech in campaigns somehow less important than political speech at Ivy league institutions?

Confirmation hearings essential to understand Kagan’s First Amendment perspective
Ultimately, we still don’t know what Kagan believes on campaign finance, but the evidence indicates she favors sweeping restrictions on political speech with only flimsy government rationales to support these curbs.

In a 1995 book review of “The Confirmation Mess” in 1995, Kagan wrote: “When the Senate ceases to engage nominees in a meaningful discussion of legal issues, the confirmation process takes on an air of vacuity and farce, and the Senate becomes incapable of either properly evaluating nominees or appropriately educating the public.”

It is critical that Senators hold Kagan to her own standard on campaign finance issues. She’s a chalky slate at best on First Amendment jurisprudence, and Americans deserve to know if she really believes the government can ban political pamphlets and if the Supreme Court should overrule Buckley v. Valeo, as she as advocated for the administrations of Barack Obama and Bill Clinton, respectively. She could fairly decline to state her views on specific campaign finance cases that may reach the Supreme Court, such as RNC v. FEC or SpeechNow.org v. FEC, but it would be incredibly troubling for her to flip flop on her contention that the Senate cannot properly evaluate nominees or educate the public without a candid discussion of the nominee’s views on broad constitutional and legal issues.

[Note: this post was updated at 2:07 p.m. and 4:45 p.m. Wed., May 12]

Brad Smith

https://www.ifs.org/author/bsmith/

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