8:45 pm Eastern
By Drew Zahn
© 2010
 Elena Kagan |
In the first case she argued before the Supreme Court as solicitor general, Elena Kagan, President Obama's pick to join the court, argued that the federal government has the power to ban books it deems to be "political electioneering."
The stance begs the question how Kagan would respond toward legal challenges levied against political exposés like "The Obama Nation" or "The Manchurian President."
And even though Kagan testified the federal government has not used that power in 60 years of the relevant law being on the books and wouldn't be likely to use it, she did affirm that political pamphlets could run afoul of the law as examples of "classic electioneering."
David N. Bossie is president of Citizens United, the organization that brought the case in which Kagan argued, Citizens United v. Federal Election Commission, to the Supreme Court:
"In Elena Kagan, President Obama has found a nominee whose views on the First Amendment are at worst disqualifying and at least should be questioned rigorously," Bossie said in a statement. "Kagan argued that a statute that, by her own admission, banned books was not 'overbroad,' and that pamphlets produced with corporate funds could be censored."
He continued, "Authors and pamphleteers from Thomas Paine to Hamilton, Madison, and Jay writing as Publius were critical to the founding of this country. The founders, Madison in particular, recognized the danger inherent in allowing the government to regulate what could or could not be said about it and wrote the First Amendment to guard against exactly the kind of government censorship that Solicitor General Kagan advocated for in Citizens United."
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Republican leadership in Congress has also picked up on the story, as Minority Leader Sen. Mitch McConnell, R-Ky., told NBC's "Meet the Press" that Kagan's testimony was "very troubling."
"This whole area of her view of the First Amendment and political speech is something that ought to be explored by the Judiciary Committee and by the full Senate," McConnell said.
Kagan argued Citizens United v. FEC before the court in the wake of her deputy, Malcolm L. Stewart, who created an uproar after Justice Roberts had asked him if the government could ban a 500-page book that at the end said, "And so vote for x."
Stewart answered, "We could prohibit the publication of that book."
According to the official transcript of testimony, Justice Ginsburg raised the question again when Kagan appeared before the court.
"May I ask you one question that was highlighted in the prior argument," Justice Ginsburg asked, "and that was if Congress could say no TV and radio ads, could it also say no newspaper ads, no campaign biographies? Last time the answer was, yes, Congress could, but it didn't. Is that is that still the government's answer?"
Kagan then modified her deputy's answer, arguing that while a section of federal election law referred to as 441b does, "on its face," apply to "other media," such as full-length books, the FEC "has never applied 441b in that context. So for 60 years a book has never been at issue."
Section 441b specifically prohibits corporations and labor unions from paying out of their general budgets for mass communications – like TV and radio commercials – that endorse candidates for federal office. The practice is seen as "electioneering" when done within 30 days of voting.
And while many organizations create separate political action committees to get around the "general budget" restriction of 441b, Citizens United had created a DVD made available for view-on-demand, which it argued did not constitute a "mass communication" according to federal law.
In the course of arguments before the court, however, the question arose as to whether books could be considered "mass communication."
Justices Scalia and Roberts were not satisfied with Kagan's answer and immediately sought clarification – Scalia suggesting interpreting the law so broadly as to include books might necessitate striking the law as unconstitutional, Roberts wondering whether even pamphlets would fall under Kagan's definition of "other media" regulated by 441b.
"I think a pamphlet would be different," Kagan answered. "A pamphlet is pretty classic electioneering, so there is no attempt to say that 441b only applies to video and not to print."
Upon her answer, Justice Scalia jumped into the argument as well, saying that based on Kagan's logic he had "no idea where the government would draw the line with respect to the medium that could be prohibited."
Kagan then softened her answer, reiterating an earlier suggestion that an FEC prohibition of a book would likely lose a legal challenge and adding, "What we're saying is that there has never been an enforcement action for books. Nobody has ever suggested – nobody in Congress, nobody in the administrative apparatus – has ever suggested that books pose any kind of corruption problem."
Scalia, however, was still not appeased.
"So you are a lawyer advising somebody who is about to come out with a book and you say, 'Don't worry, the FEC has never tried to send somebody to prison for this,'" he postulated. "'This statute covers it, but don't worry, the FEC has never done it.' Is that going to comfort your client? I don't think so."
The discussion resolved when Justice Roberts brought back his original question of whether or not a book produced by a corporation or union that ended with "vote for Jones" could be banned.
"I think that that wouldn't be covered, Mr. Chief Justice," Kagan responded. "The FEC is very careful and says this in all its regulations to view matters as a whole. And as a whole that book would not count as express advocacy."
Could an entire book be considered "express advocacy" and face an FEC ban?
Kagan's only answer came in an earlier statement: "One cannot imagine very many books that would."
But while the justices allowed the matter to drop and proceeded to other arguments, Citizens United has continued to speak up.
"Introducing Elena Kagan," Bossie said in his statement, "President Obama mentioned no other decision and applauded her for choosing CU v. FEC to be her first argument as Solicitor General, making it clear that her participation in that case was a significant factor in his decision to nominate her.
He concluded, "Given President Obama's reliance on her role in Citizens United v. Federal Election Commission and the essential importance of the First Amendment to American democracy, I urge the Senate to reject Elena Kagan's nomination to the Supreme Court. Every American has a fundamental right to speak out for or against their elected representatives without fear of reprisal, and a nominee who does not respect that right has no business on our nation's highest court."
As WND reported, Kagan's stances on the First Amendment are already coming under scrutiny in the Supreme Court confirmation process.
In a 1996 paper, "Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine," Kagan argued it may be proper to suppress speech because it is offensive to society or to the government.
The paper asserted First Amendment doctrine is comprised of "motives and … actions infested with them," and she goes so far as to claim, "First Amendment law is best understood and most readily explained as a kind of motive-hunting."
Kagan's name was also on a brief, United States v. Stevens, dug up by the Washington Examiner, stating: "Whether a given category of speech enjoys First Amendment protection depends upon a categorical balancing of the value of the speech against its societal costs."
The Citizens United case, however, has brought the boil of questions over Kagan's First Amendment views to the front burner.
In a speech on the Senate floor yesterday, Sen. McConnell stated, "Indeed, the amount of power Ms. Kagan and her office argued that the federal government had in this area was so broad that both liberal and conservative justices found their arguments jarring, given the reverence Americans of all ideological stripes have for the First Amendment."
He continued, "Now, I asked Ms. Kagan about her position in this case last week when we met in my office. She said she made the arguments she did because she had to defend the statute. And I understand that her office has to defend federal law. But the client doesn't choose the argument, the lawyer does. And the argument Ms. Kagan and her office chose was that the federal government has the power to ban books and pamphlets.
"The administration has nominated one of its own to a lifetime position on the country's highest court," McConnell concluded. "We need to be convinced that Ms. Kagan is committed to the principle that the First Amendment is not, as she put it, just some 'unfortunate' impediment to the government's power to regulate."
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