Squinting at Kagan's Views on Campaign Finance Regulation

Over at the Center for Competitive Politics, Brad Smith and Jeff Patch try to figure out what Elena Kagan thinks about campaign finance reform. Although "she's been characterized as a 'blank slate,'" they write, "perhaps a more apt term, especially on campaign finance, would be a chalky slate….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." In my column today, I discuss Kagan's defense of restrictions on political speech by corporations in Citizens United. While the arguments Kagan made as solicitor general do not necessarily reflect her own views, Smith and Patch note that President Obama made a big deal out of her role in that case when he announced her nomination, saying:

Last year, in the Citizens United case, she defended bipartisan campaign finance reform against special interests seeking to spend unlimited money to influence our elections.  Despite long odds of success, with most legal analysts believing the government was unlikely to prevail in this case, Elena still chose it as her very first case to argue before the Court. 

I think that says a great deal not just about Elena's tenacity, but about her commitment to serving the American people. 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.

That certainly makes it sound as if Obama believes he and Kagan see eye to eye on this issue. Still, it is maddeningly hard to pin her down when she is speaking in her own voice. In a long 1996 article published by The University of Chicago Law Review, for instance, she quotes a sentence from the landmark campaign finance case Buckley v. Valeo, which overturned restrictions on campaign spending while upholding restrictions on campaign contributions: "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." Kagan calls this "one of the most castigated passages in modern First Amendment case law." Rightly castigated? Wrongly castigated? It's not clear what Kagan thinks, though she does say that "no Justice on the current Court would dispute the claim—even if some Justices would dispute applications of it—that the government may not restrict the speech of some to enhance the speech of others."

This discussion of Buckley comes in the context of a section explaining how the seemingly neutral goal of "equalizing the speech market" can be a cover for viewpoint discrimination. The fact that Kagan considers "the redistribution of expression" unconstitutional (or, at least, believes that is what the Supreme Court has said) may shed light on her decision in Citizens United to eschew the argument that corporate speech can be restricted to prevent wealthy companies from distorting the public debate. Although that was the main rationale for Austin v. Michigan Chamber of Commerce, one of the decisions the Court overturned in Citizens United, Kagan instead tried to justify restrictions on corporate speech by citing the potential for corruption and for contradicting the views of shareholders. That switcheroo led Chief Justice John Roberts to remark during the second round of oral arguments (PDF) that "you are asking us to uphold Austin on the basis of two arguments, two principles, two compelling interests we have never accepted in the expenditure context."

What Kagan calls "the Buckley principle"—that the government has no business trying to balance the political debate by limiting the speech of those it deems excessively influential—plays an important role in her elucidation of First Amendment doctrine, and she seems to agree with it (although it's hard to be sure). For critics of campaign finance reform, this is the most encouraging passage in the article:

All the laws directed at equalization that the Court has considered, whether classified as facially content based or content neutral, raise questions as to the motives of the enacting legislatures. Campaign finance laws like those in Buckley easily can serve as incumbent-protection devices, insulating current officeholders from challenge and criticism. When such laws apply only to certain speakers or subjects, the danger of illicit motive becomes even greater; for example, the law in First National Bank v Bellotti, which barred corporations from spending money in referendum campaigns, almost surely arose from the historic role of corporate expenditures in defeating referenda on taxation. Similarly, a right-of-reply law like the one in Tornillo—applicable only to political candidates, albeit to all of them—may have stemmed not from the desire of officials to enhance the quality of public debate, but from their wish to get the last word whenever criticized. If this law did not quite prohibit seditious libel, it came close. And the must-carry rules in Turner may have emerged more from the yen of politicians for local publicity than from their wish either to preserve free television or to enhance public discourse. All these examples suggest the same point: there may be good reason to distrust the motives of politicians when they apply themselves to reconstructing the realm of expression.

Critics of McCain-Feingold, the law that Kagan enthusiastically defended in Citizen United—a public service that Obama Clinton highlighted in choosing her for the Supreme Court—can only nod in agreement upon reading these words. But Kagan's welcome acknowledgment that politicians can use campaign finance regulations to protect themselves does not tell us how far she might be willing to let the government go in fighting corruption, as opposed to debate distortion, through speech restrictions.