The Big Ban Theory

Does Elena Kagan want to ban books? No, and she might even be a free-speech zealot.

Elena Kagan

To hear Senate Minority Leader Mitch McConnell, R-Ky., tell it, if Solicitor General Elena Kagan is confirmed to the Supreme Court, she just may be ready to authorize the government to ban books and pamphlets criticizing politicians. It’s an argument that’s been repeatedly echoed on the right, most recently by Citizens United President David Bossie, who wrote in a Washington Post op-ed Friday that Kagan believes “pamphlets could be censored:” Bossie concluded that “[a] nominee who believes that certain types of speech and certain speakers should be censored for no other reason than that speech affects a lawmaker’s chances of re-election is not fit for the Supreme Court.”

The book-banning claim against Kagan is completely spurious, based on a distortion of her remarks at a Supreme Court oral argument in the Citizens United case as well as the comments made the same week Kagan started as solicitor general by Malcolm Stewart, a career deputy solicitor general who argued the case last spring. Not only have these isolated comments blossomed into full-on hysteria over Kagan the potential book banner, but they actually have come to obscure the fact that how Kagan herself would vote in campaign finance cases is far from clear. Her own academic writings show she is deeply concerned about incumbents passing laws to protect themselves from competition, and she could well end up agreeing with Chief Justice John Roberts, and Justices Samuel Alito, Anthony Kennedy, Antonin Scalia, and Clarence Thomas that limits on campaign spending by corporations are unconstitutional.

To understand how Kagan could be tarred as a proponent of censorship and a protector of incumbents, one needs more context than Bossie offers. For decades, federal law has said that if a for-profit corporation or labor union wanted to produce anything expressly calling for the election or defeat of a federal candidate, it had to use funds from a political action committee, or PAC. The corporation could pay all the expenses to set up and run the PAC, and the PAC could ask corporate officers, directors, shareholders, and others to donate funds to it for political purposes. The corporation itself could endorse a candidate for office at a press conference, and, of course, real live individuals associated with the corporation could both donate money to federal candidates and spend unlimited sums supporting or opposing such candidates. What the corporation could not do is spend its general treasury funds—that is, the money it received from selling sneakers or software—for candidate elections. (Nonprofit ideological corporations like an anti-abortion group that did not take corporate or union money could spend their general treasury funds on such ads.)

The Supreme Court first upheld these PAC rules for for-profit corporations in 1990. In 2002, Congress in the McCain-Feingold law extended this PAC requirement to television and radio ads broadcast very close to the election that didn’t expressly call for the election or defeat of a federal candidate but that mentioned the candidate, such as, “Call Senator Smith and tell him to stop supporting bailouts for banks.” Since that time, the Supreme Court created a big, fat loophole for such advertising so long as it might have a non-election-related purpose.

At issue in Citizens United was whether an ideological corporation that did take corporate money could be required to use its PAC to pay for cable television “video-on-demand” distribution of a documentary excoriating Hillary Clinton while she was running for the Democratic presidential nomination. The position of the government, eventually defended at the high court by the government’s lawyer, Kagan, was that the PAC requirement was constitutional as applied to television content paid for from Citizens United’s general treasury funds. Justice Breyer explained the basis for the McCain-Feingold rule in the Citizens United oral argument: “Look, [Congress] said the compelling interest is that people think that representatives are being bought, okay? That’s to put it in a caricature, but you understand what I’m driving at, okay? …. So Congress now says precisely that interest leads us to want to limit the expenditures that corporations can make on electioneering communication in the last 30 days of a primary, over-the-air television, but not on radio, not on books, not on pamphlets, not on anything else. All right?”

So the question for the court was whether this corporation had to pay for its television content out of a separate fund. It did not involve books at all, much less the ability of the government to ban books or any other form of political speech. Nonetheless, Justices Kennedy, Alito, and others pressed the point when the case was first argued in March 2009, and then again when Kagan reargued it in September 2009. * In the March argument, Deputy Stewart tried to explain that the McCain-Feingold provision did not apply to books, and that, in any case, the question was not one about a ban: It was about whether the Citizens United group had to use its PAC, a PAC that had raised millions of dollars in the past for just such activity. But to these justices, requiring the corporation to set up a separate fund to pay for corporate election-related spending was a “ban” on speech, because PACs impose administrative burdens on those who run them. And thus the idea that the government was ready to ban books was born.

It is certainly not fair to tar Kagan personally with comments made by Stewart at oral argument last March. It is highly unlikely that in the few days between the time she took the job and Stewart argued the case that she had any significant involvement in it. As for Kagan herself, when she defended the campaign finance law at the September reargument of the case, she did not endorse the proposition that the government could “ban” books and indeed said that if the government ever tried to apply the PAC requirement to books published by corporations, there would be a good basis for it to be challenged as unconstitutional. Because the court had made such hay with Stewart’s book-banning suggestions the previous spring, Kagan also had a number of backup arguments, contending, for instance, that ideological corporations that take just a little bit of for-profit corporate money, like the Citizens United group, should get the same exemption from the PAC requirement as ideological corporations that don’t take any.

But what has so exercised Sen. McConnell, David Bossie, and others is Kagan’s statement at argument—in response to more pressing by the conservative justices—that if a corporation produced “a pamphlet” directly calling for the election or defeat of a federal candidate (“Vote against Smith”), it would have to pay for it with its PAC funds. This is hardly the stuff of book-banning and government censorship. As Justice Stevens explained in his dissent in Citizens United, to call the PAC requirement a “ban” is “highly misleading, and needs to be corrected.”

The whole book-banning argument then turns out to be no more than political theater to beat up on the president’s nominee, and on the president by proxy. Ordinarily, it would be enough to say that when Kagan made her arguments, she was arguing on behalf of her client, the United States, and who knows what she really thinks? After all, Ted Olson defended the same statute as solicitor general and nobody has called him a book-banner. But the criticism misses the most interesting aspect of Kagan’s views on campaign finance: While both the president and Kagan have suggested that Kagan personally disagreed with the majority decision in Citizens United, her writing suggests otherwise.

The president has repeatedly criticized the Citizens United decision, and even did so when he introduced Kagan as his nominee, saying, “I think it says a great deal about her commitment to protect our fundamental rights, because in a democracy, powerful interests must not be allowed to drown out the voices of ordinary citizens.” Then, Sen. Specter reported after meeting with Kagan that she had criticized the Citizens United decision, saying the Supreme Court majority did not show enough deference to Congress.

But what’s a better predictor of Kagan’s beliefs on campaign finance regulation? An argument for her client or her own writing on the subject? In a 1996 law review article, Kagan criticized that 1990 Supreme Court case  upholding the PAC requirement for corporate express advocacy on grounds that such laws might be a cover for incumbents trying to protect themselves from political competition. Not all liberals believe campaign finance restrictions are constitutional, and some have vocally supported the result in Citizens United.It is quite possible that a Justice Kagan would vote to strike down, rather than uphold, new campaign finance restrictions that come before the court. The truth is that Sen. McConnell may be alienating a future ally in his war on campaign finance laws with the suggestion that she’s itching to ban books.

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Correction, May 26, 2010: This piece originally stated that Citizens United was reargued in September 2010. ( Return to the corrected sentence.)