Bossie falsely suggested individuals' “right to speak” was at issue in Citizens United

Bossie falsely suggested that Kagan opposes the right of a group of citizens to "[pool] their limited resources" to “speak out for or against” a political candidate. From Bossie's May 21 Washington Post op-ed:

Elena Kagan: Hostile to free speech?

I have no doubt that Elena Kagan is an intelligent and capable attorney, and I do not believe, as some have asserted, that her lack of judicial experience disqualifies her for a seat on the Supreme Court. Rather, I oppose Kagan's nomination because I believe that every American has a fundamental right, guaranteed by the First Amendment, to speak out for or against their elected representatives. Anyone who does not feel that way should not be put in a position of authority where she can restrict that right.

I am referring, of course, to Kagan's role in the landmark free-speech case brought by Citizens United, the grass-roots organization I lead. Even before Justice John Paul Stevens announced his retirement in April, President Obama telegraphed his intent to choose his next Supreme Court nominee based on that person's opposition to my organization's right to participate in the political process. Beginning with his unprecedented rebuke of the court during his State of the Union address and culminating with his remarks announcing Kagan's nomination, Obama has let it be known that opposition to the First Amendment rights of grass-roots organizations such as Citizens United has become the new litmus test.

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Kagan's defenders will also argue that the new litmus test has to do with preventing huge corporations from drowning out “the people” during elections. But this is no more than a resurrection of the tired politics of class warfare, calculated to stoke the fires of populist anger to mask an erosion of the First Amendment. Keen observers will note that the plaintiff in the only case Obama mentioned that day is Citizens United -- not Exxon Mobil or Goldman Sachs. Citizens United is an organization funded by an average donation of $50 from hundreds of thousands of Americans nationwide. Our members, whose voices would be drowned out were they prohibited from pooling their limited resources in a group such as ours, are “the people.” It is their right to speak that Obama and Kagan oppose when they criticize the court's decision in Citizens United v. FEC.

However, Citizens United could have used its PAC assets to finance its electioneering “wherever and whenever it wanted to.” Contrary to Bossie's suggestion, Kagan did not oppose the right of a group of citizens to join together and advocate for a candidate's election or defeat. In fact, as Justice John Paul Stevens wrote in the minority opinion in Citizens United v. FEC, the ability of Citizens United to engage in electioneering - namely, the promotion and broadcast of Hillary: The Movie - was never in question. Under previously existing campaign finance law, Citizens United could have used Political Action Committee assets “to televise and promote Hillary: The Movie wherever and whenever it wanted to.” From Justice Stevens' opinion concurring in part and dissenting in part in Citizens United v. FEC -- an opinion joined by Justices Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor:

The real issue in this case concerns how, not if, the appellant may finance its electioneering. Citizens United is a wealthy nonprofit corporation that runs a political action committee (PAC) with millions of dollars in assets. Under the Bipartisan Campaign Reform Act of 2002 (BCRA), it could have used those assets to televise and promote Hillary: The Movie wherever and whenever it wanted to. It also could have spent unrestricted sums to broadcast Hillary at any time other than the 30 days before the last primary election. Neither Citizens United's nor any other corporation's speech has been “banned,” ante , at 1. All that the parties dispute is whether Citizens United had a right to use the funds in its general treasury to pay for broadcasts during the 30-day period. The notion that the First Amendment dictates an affirmative answer to that question is, in my judgment, profoundly misguided. Even more misguided is the notion that the Court must rewrite the law relating to campaign expenditures by for-profit corporations and unions to decide this case.

SCOTUSblog's Denniston: Kagan “contended that the real issue involves political action by major for-profit corporations, not non-profit advocacy corporations like Citizens United.” As SCOTUSblog's Lyle Denniston noted: “In outlining what it called 'idiosyncratic features' of this particular case that make it 'particularly unsuitable' to raise large constitutional questions, the Solicitor General's brief contended that the real issue involves political action by major for-profit corporations, not non-profit advocacy corporations like Citizens United. The Court, it argued, should await a constitutional case brought by a for-profit corporation, or at least by a non-profit corporation that depends heavily upon money from for-profit firms. Essentially, the government appeared to be suggesting a legal pass for the Hillary movie, and for Citizens United.”

Citizens United ruling allows corporations to spend unlimited amounts to advocate for a candidate's election or defeat. A January 21 Washington Post article on the Citizens United ruling reported that a “divided Supreme Court” “swept aside decades of legislative restrictions on the role of corporations in political campaigns, ruling that companies can dip into their treasuries to spend as much as they want to support or oppose individual candidates.” The Post continued: “The decision shakes the foundation of corporate limitations on federal and state elections that stretch back a century.”

Citizens United dissenters: Decision will “cripple” government's ability to prevent “corporate domination of the electoral process.” From Justice Stevens' opinion in Citizens United v. FEC (joined by Justices Ginsburg, Breyer, and Sotomayor):

The Court's blinkered and aphoristic approach to the First Amendment may well promote corporate power at the cost of the individual and collective self-expression the Amendment was meant to serve. It will undoubtedly cripple the ability of ordinary citizens, Congress, and the States to adopt even limited measures to protect against corporate domination of the electoral process. Americans may be forgiven if they do not feel the Court has advanced the cause of self-government today.

Citizens United dissenters: Majority's ruling overturned 100 years of federal regulations on electioneering. As Solicitor General, Kagan took a position in Citizens United that was faithful to Supreme Court precedent. As Justice Stevens noted, writing for the minority, “The majority's approach to corporate electioneering marks a dramatic break from our past ... The Court today rejects a century of history when it treats the distinction between corporate and individual campaign spending as an invidious novelty born of Austin v. Michigan Chamber of Commerce.” From Justice Stevens' opinion in Citizens United v. FEC (joined by Justices Ginsburg, Breyer, and Sotomayor):

In the context of election to public office, the distinction between corporate and human speakers is significant. Although they make enormous contributions to our society, corporations are not actually members of it. They cannot vote or run for office. Because they may be managed and controlled by nonresidents, their interests may conflict in fundamental respects with the interests of eligible voters. The financial resources, legal structure, and instrumental orientation of corporations raise legitimate concerns about their role in the electoral process. Our lawmakers have a compelling constitutional basis, if not also a democratic duty, to take measures designed to guard against the potentially deleterious effects of corporate spending in local and national races.

The majority's approach to corporate electioneering marks a dramatic break from our past. Congress has placed special limitations on campaign spending by corporations ever since the passage of the Tillman Act in 1907, ch. 420, 34 Stat. 864. We have unanimously concluded that this “reflects a permissible assessment of the dangers posed by those entities to the electoral process,” FEC v. National Right to Work Comm. , 459 U. S. 197, 209 (1982) (NRWC) , and have accepted the “legislative judgment that the special characteristics of the corporate structure require particularly careful regulation,” id., at 209-210. The Court today rejects a century of history when it treats the distinction between corporate and individual campaign spending as an invidious novelty born of Austin v. Michigan Chamber of Commerce , 494 U. S. 652 (1990) . Relying largely on individual dissenting opinions, the majority blazes through our precedents, overruling or disavowing a body of case law including FEC v. Wisconsin Right to Life , Inc., 551 U. S. 449 (2007) (WRTL) , McConnell v. FEC , 540 U. S. 93 (2003) , FEC v. Beaumont , 539 U. S. 146 (2003) , FEC v. Massachusetts Citizens for Life , Inc., 479 U. S. 238 (1986)(MCFL) , NRWC , 459 U. S. 197 , and California Medical Assn. v. FEC , 453 U. S. 182 (1981) .

In his landmark concurrence in Ashwander v. TVA , 297 U. S. 288, 346 (1936) , Justice Brandeis stressed the importance of adhering to rules the Court has “developed ... for its own governance” when deciding constitutional questions. Because departures from those rules always enhance the risk of error, I shall review the background of this case in some detail before explaining why the Court's analysis rests on a faulty understanding of Austin and McConnell and of our campaign finance jurisprudence more generally . ¹ I regret the length of what follows, but the importance and novelty of the Court's opinion require a full response. Although I concur in the Court's decision to sustain BCRA's disclosure provisions and join Part IV of its opinion, I emphatically dissent from its principal holding.

Bossie repeated myths that Kagan supports banning books, pamphlets

From Bossie's May 21 op-ed:

Most troubling of all is that the line of reasoning running through Kagan's opposition to our case leads directly to the conclusion that the government has the authority to ban books and other forms of communication. When our case was reargued before the high court last September, Kagan tried to walk back from that reasoning, saying that the “FEC has never applied this statute to a book.” But she specifically noted that pamphlets could be censored, which leads to questions: What about content published on a Kindle or an iPad? What about YouTube or other Internet sites that do not have 200 years of tradition and jurisprudence protecting them? Is a statement from a government lawyer that “we've never prosecuted anyone for that” really an acceptable protection of a constitutionally guaranteed right?

Kagan didn't just say the FEC had never banned a book, she also said that such a ban would likely be unconstitutional. As Media Matters noted when Bossie previously claimed Kagan “came out in oral arguments in our case before the Supreme Court and stated that books could be banned,” the argument that campaign books paid for by corporate funds could be banned was actually made by a deputy solicitor general five days after Kagan was confirmed and when the case was reargued, Kagan specifically argued that federal law had never banned books and likely could not do so. Kagan stated that if the government tried to ban books under campaign finance laws, “there would be quite good as-applied challenge” to the law, meaning that the corporation attempting to publish the book would have a good constitutional case that the book couldn't be banned. Kagan later added: "[W]hat 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, so I think that there would be a good as-applied challenge with respect to that."

Kagan did not say all pamphlets could be banned. Additionally, Kagan argued that government could prohibit corporations and unions -- not individuals -- from spending their money on pamphlets to directly support or oppose political candidates. 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.

Kagan's First Amendment views are mainstream and “generally pretty speech-protective”

First Amendment scholar Volokh predicts that -- like Justice Ginsburg -- Kagan will likely be “generally pretty speech-protective.” Conservative media have repeatedly distorted Kagan's statements to suggest that she is anti-free speech. However, libertarian law professor and First Amendment expert Eugene Volokh examined Kagan's scholarship on the First Amendment and concluded that “the likeliest bet” is that Kagan would be “generally speech-protective, but probably with some exceptions in those areas where the liberal Justices on the Court have taken a more speech-restrictive view.” Volokh wrote:

On then to my own evaluation of the First Amendment articles: I think they're excellent. I disagree with them in significant ways (this article, for instance, reaches results that differ quite a bit from those suggested by Kagan's Private Speech, Public Purpose article, see, e.g., PDF pp. 8-9). But I like them a lot.

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My guess is that the likeliest bet would be to say that a Justice Kagan would be roughly where Justice Ginsburg is -- generally pretty speech-protective, but probably with some exceptions in those areas where the liberal Justices on the Court have taken a more speech-restrictive view, chiefly expensive speech related to campaigns and religious speech in generally available government subsidies. Not perfect from my perspective, but not bad, and no worse than Justice Stevens, with whom Justice Ginsburg largely agreed on such matters.

Former Chicago Law School Dean Stone: Kagan approached First Amendment issues “without even a hint of predisposition.”Geoffrey R. Stone, a law professor at the University of Chicago who was dean when Kagan was hired there, wrote in a May 10 article:

In her formative years as a scholar, Kagan wrote a series of illuminating articles about freedom of speech. They were illuminating not only because they shed interesting light on the First Amendment, but also because they reveal a lot about Kagan. In an area rife with ideology, her articles addressed complex and weighty legal questions without even a hint of predisposition.

In one early essay, she addressed the provocative issue of hate speech. After examining the question in a rigorous, lawyerlike manner, she came out in full support of a highly controversial 5-4 decision authored by none other than conservative Justice Antonin Scalia, which held that the government cannot constitutionally ban hate speech. Kagan reached this result even though it was clearly contrary to the liberal orthodoxy at the time.

Even Fox News' Megyn Kelly says Kagan “seems pretty middle of the road” on “free speech matters.” From the May 11 edition of The O'Reilly Factor (retrieved from Nexis):

KELLY: Well, I have to say on free speech, Elena Kagan, so far this is something she's written a lot about, seems pretty middle of the road. I don't expect her to be a far left liberal on free speech matters.

NY Times reports there are indications Kagan's “views on government regulation of speech were closer to the Supreme Court's more conservative justices, like Antonin Scalia.” The New York Times reported in a May 14 article:

In her early years as a law professor, Elena Kagan wrote almost exclusively on the First Amendment. There are indications in those writings that her views on government regulation of speech were closer to the Supreme Court's more conservative justices, like Antonin Scalia, than to Justice John Paul Stevens, whom she hopes to replace.