The Washington Examiner falsely suggested that Elena Kagan wanted to “ban pamphlets” written by individuals. In fact, Kagan argued that government could prohibit corporations and unions -- not individuals -- from spending general funds on pamphlets to directly support or oppose political candidates.
Stirewalt on Kagan: “All she really wanted to do was ban pamphlets” by “Modern Thomas Paines”
Stirewalt: “Modern Thomas Paines take heart because Kagan lost her argument.” In a May 17 blog post, Examiner political editor Chris Stirewalt wrote:
Writer Eric Zimmerman thinks that the Republicans are being silly when they say that Elena Kagan supported banning books as solicitor general. All she really wanted to do was ban pamphlets, which anyone would have to admit are much smaller than books.
Modern Thomas Paines take heart because Kagan lost her argument and the campaign finance law that prevented “electioneering” by individuals not registered with the government as official candidates.
But Kagan specifically discussed government prohibiting corporations and unions -- not individuals -- from spending funds on pamphlets to influence elections
Kagan argued that government could restrict corporations and unions -- not individuals -- from using general funds to influence federal law. From 2 U.S.C. 441(b)(a), which was struck down as a result of Citizens United v. FEC:
It is unlawful for...any corporation... to make a contribution or expenditure in connection with any election to any political office...or for any labor organization, to make a contribution or expenditure in connection with any election...
Kagan argued that, while government likely couldn't ban corporations and unions from spending general funds on books, it could bar them from spending funds on political pamphlets under section 441(b). When Chief Justice John Roberts specifically asked Kagan -- who was arguing the case before the court as solicitor general -- about whether section 441(b) would apply to pamphlets, though not to books, Kagan replied that section 441(b) could apply to pamphlets, because they are “pretty classic electioneering.” From Kagan's September 9, 2009, oral argument in Citizens United v. F.E.C.:
ROBERTS: But we don't put our -- we don't put our First Amendment rights in the hands of FEC bureaucrats; and if you say that you are not going to apply it [Section 441(b)] to a book, what about a pamphlet?
KAGAN: I think a -- a pamphlet would be different. A pamphlet is pretty classic electioneering, so there is no attempt to say that 441(b) only applies to video and not to print. It does --
Kagan argued for interpretation of Supreme Court precedent that would protect shareholders, public from “distortion of the electioneering that is done by corporations.” Kagan argued that “when corporations use other people's money to electioneer, that is a harm not just to the shareholders themselves, but a sort of a broader harm to the public that comes from distortion of the electioneering that is done by corporations.” From Kagan's September 9, 2009, oral argument in Citizens United v. F.E.C.:
KAGAN: For over 100 years Congress has made a judgment that corporations must be subject to special rules when they participate in elections and this Court has never questioned that judgment.
I would say either the quid pro quo interest, the corruption interest or the shareholder interest, or what I would say is a (.) is something related to the shareholder interest that is in truth my view of Austin, which is a view that when corporations use other people's money to electioneer, that is a harm not just to the shareholders themselves but a sort of a broader harm to the public that comes from distortion of the electioneering that is done by corporations.
You know, an individual can be the wealthiest person in the world but few of us (.) maybe some (.) but few of us are only our economic interests.
We have beliefs, we have convictions; we have likes and dislikes.
Corporations engage the political process in an entirely different way and this is what makes them so much more damaging.
Roberts' concurring opinion: The government's position would allow prohibition against corporations and unions participating in political speech through pamphlets. From Roberts' concurring opinion in Citizens United v. F.E.C.:
The Government urges us in this case to uphold a direct prohibition on political speech. It asks us to embrace a theory of the First Amendment that would allow censorship not only of television and radio broadcasts, but of pamphlets, posters, the Internet, and virtually any other medium that corporations and unions might find useful in expressing their views on matters of public concern. Its theory, if accepted, would empower the Government to prohibit newspapers from running editorials or opinion pieces supporting or opposing candidates for office, so long as the newspapers were owned by corporations--as the major ones are. First Amendment rights could be confined to individuals, subverting the vibrant public discourse that is at the foundation of our democracy.