20 May 2010

Kagan knows the law; that's for sure

I just finished listening to the oral arguments in the Citizens United case, something I've been wanting to get to for some time. One can't deny she knows the law. Of course, it's her view of the Constitution and its application that would be objectionable. But there were some disturbing elements in her arguments.

From the transcript:
GENERAL KAGAN: There the strongest justification is the anticorruption interest.

JUSTICE ALITO: Well, with respect to that what is your answer to the argument that more than half the States, including California and Oregon, Virginia, Washington State, Delaware, Maryland, a great many others, permit independent corporate expenditures for just these purposes? Now have they all been overwhelmed by corruption? A lot of money is spent on elections in California; has -- is there a record that the corporations have corrupted the political process there?

GENERAL KAGAN: I think the experience of some half the States cannot be more important than the 100-year old judgment of Congress that these expenditures would corrupt the Federal system, and I think that....

JUSTICE SCALIA: Congress has a self-interest. I mean, we -- we are suspicious of congressional action in the First Amendment area precisely because we -- at least I am -- I doubt that one can expect a body of incumbents to draw election restrictions that do not favor incumbents. Now is that excessively cynical of me? I don't think so.

GENERAL KAGAN: I think, Justice Scalia, it's wrong. In fact, corporate and union money go overwhelmingly to incumbents. This may be the single most self-denying thing that Congress has ever done. If you look -- if you look at the last election cycle and look at corporate PAC money and ask where it goes, it goes ten times more to incumbents than to challengers, and in the prior election cycle even more than that.

The Campaign Finance law has been caricatured as the Incumbent Protection Act. General Kagan's argument against this caricature is that, since the bulk of corporate political contributions go to incumbents, this act may be the most selfless thing Congress have ever done. (You can hear the laughter in the back-ground.) But the act -- and this is also mentioned in the argument -- does not discriminate with respect to the size of the corporation affected, which includes not-for-profit corporations. All this really means is that everyone will be receiving less money, incumbent and challenger alike. So incumbents may be getting less in terms of dollars, but so will challengers. Incumbents will likely still receive more money than challengers.

From the transcript again:
GENERAL KAGAN: I don't think that it would be substantially overbroad, Justice Scalia, if I tell you that the FEC has never applied this statute to a book. To say that it doesn't apply to books is to take off...nothing.

CHIEF JUSTICE ROBERTS: But we don't put our -- we don't put our First Amendment rights in the hands of [Federal Election Commission] bureaucrats; and if you say that you are not going to apply it to a book, what about a pamphlet?

GENERAL KAGAN: I think...a pamphlet would be different. A pamphlet is pretty classic electioneering, so there is no attempt to say that [the law] only applies to video and not to print. It does....
If the FEC deems a pamphlet to be electioneering, it may be banned under the law. A pamphlet, banned -- you know, to keep the money out of politics.

Freedom of speech? Freedom of the press? Sure, when quite convenient -- for the government.

Note: As Solicitor General, Elana Kagan represents the U. S. government before the Court. The arguments she makes in court may not reflect her views. As an attorney she must represent her client without passion or prejudice. So when I say there were disturbing elements in the argument I am talking about the law in question.

About Me

James Frank SolĂ­s
Former soldier (USA). Graduate-level educated. Married 26 years. Texas ex-patriate. Ruling elder in the Presbyterian Church in America.
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