Plain Truth about Kagan

Thomas Paine's "Common Sense"

Congress is busy once again with bold new efforts to silence political speech in the very arena where it has the most impact – elections. Much of the public reacted badly to the Supreme Court’s recent decision in Citizens United striking down parts of the McCain-Feingold “campaign reform” act. I suspect many of the critics suffer from over-exposure to The New York Times, a corporation with a loud voice in electoral politics that thinks other corporations should not have any voice at all in such matters. It is rather instructive, however, to revisit part of the oral argument in Citizens United in which Supreme Court nominee Elena Kagan dances around the First Amendment.

The new “DISCLOSE” act is likely to pass. Elena Kagan is likely to be confirmed to the court. The new act will almost surely be challenged and reach the Supreme Court once again. Will Kagan voice these same views in a future hearing – this time from the bench?

George Will has a few questions that he thinks Kagan should answer in the confirmation hearings.  Among them:

– The president is morose about the court’s Citizens United decision holding that the First Amendment, which says Congress shall make “no law” abridging freedom of speech, means no laws abridging a corporation’s freedom to speak, including nonprofit advocacy corporations such as the National Rifle Association and the Sierra Club. The court called it “censorship” for government “to command where a person may get his or her information or what distrusted source he or she may not hear.” Do you agree?

– You have noted that the court often considers legislative motives when deciding First Amendment cases. Should the court consider legislators’ motives if, in response to Citizens United, they impose new burdens on corporate speech?

– When incumbent legislators write laws restricting the quantity, content and timing of speech about legislative campaigns, are not their motives presumptively suspect?

Steve Simpson has a new blog devoted to this topic.

According to Yale law professor Owen Fiss, we may “have to silence the voices of some in order to hear the voices of . . . others. Sometimes there is simply no other way.” The view that speech must justify itself to be left free is perhaps nowhere more apparent than in the area of campaign finance law.

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In our view, the First Amendment means what it says. It protects an individual right to freedom of speech, not a privilege to be tolerated at society’s pleasure. Furthermore, the right to speak implies the right to speak effectively, by associating with others, purchasing advertisements on national television and everything in between.

In other words, campaign finance laws essentially say that you can speak so long as we’re sure no one can hear you.