The Supreme Court decision in Citizens United v. Federal Election Commission,[1] the first case argued (and lost) by Elena Kagan as Solicitor General before the Supreme Court, has quickly become one of the most misunderstood decisions in recent history. The Court’s decision – striking down a campaign finance reform provision that prohibited corporate independent expenditures for electioneering communication – has been demonized as a victory for big corporations that want to influence elections to the detriment of individual citizens. This view has been promoted by President Obama himself, who said the following about Kagan’s defense of the law:
Last year . . . she defended bipartisan campaign finance reform against special interests seeking to spend unlimited money to influence our elections. Despite long odds of success, with most legal analysts believing the government was unlikely to prevail in this case, Elena still chose it as her very first case to argue before the Court. I think that says a great deal . . . about her commitment to serving the American people . . . [and] her commitment to protect our fundamental rights, because in a democracy, powerful interests must not be allowed to drown out the voices of ordinary citizens.[2] (Emphasis added).
In reality, the decision was a victory for the First Amendment, ensuring that for profit and nonprofit[3] If the First Amendment right to freedom of speech means anything, surely it guarantees the right to speak about candidates for public office. corporations may exercise their right to political speech. In fact, the plaintiff in the case was a nonprofit corporation (with an annual budget of about $12 million, most of which comes from donations by individuals with a small portion from for-profit corporations) that released a documentary about a presidential candidate.
In practice, campaign finance reform laws have negatively impacted non-profit policy groups more dramatically than the vilified “big corporation.” Many non-profits (e.g. pro-life organizations) do not have the resources to meet the requirements of the Federal Election Campaign Act (FECA) and McCain-Feingold campaign finance reform laws, and therefore are limited in their ability to engage in political speech. This is detrimental to society because these organizations often provide the most effective way for member-citizens to vocalize their political views at critical times.
Since defending the contested law before the Supreme Court, Kagan has not distanced herself from her arguments. On the contrary, according to Senator Arlen Specter (D-PA), Kagan stated in a private meeting with him that “the court was not sufficiently deferential to Congress” in Citizens United.[4]
Conclusion:
The questions that Judiciary Committee members must ask are these: “Does Elena Kagan believe that the government can suppress speech because it does not like the speakers such as pro-life advocates? Further, is it constitutional to burden for profit and non-profit corporations with onerous requirements for exercising their right to free speech? Also, can the government prohibit such entities from speaking at all in certain contexts?”
[1] 130 S. Ct. 876 (2010).
[2] Nominating Kagan: “Her Passion for the Law is Anything But Academic,” The White House Blog, May 10, 2010 available at http://www.whitehouse.gov/blog/2010/05/10/nominating-kagan-her-passion-law-anything-academic.
[3] Supra note 1 at 886.
[4] Thomas Ferraro, Senator Says Kagan Critical of Supreme Court, Reuters, May 13, 2010 available at http://www.reuters.com/article/idUSTRE64C41820100513
