Today in Washington, D.C. - May 17, 2010 - Did Kagan Argue The Gov't Could Ban Books & Political Pamphlets?

The Senate will reconvene at 2 PM today and  will resume consideration of S. 3217, the Dodd financial regulation bill. At 5:30 PM, votes on amendments to the bill are schedule to continue.

Today, Rep. Mike Pence, Chairman of the House Republican Conference announced that Republican members of Congress will host on Wednesday May 19th the "End the Bailouts: A Greek Forum." They are inviting leading economic experts to discuss the current situation in Greece and Europe and the impact these bailouts have on the U.S. economy and its taxpayers. Last week, Republicans introduced H.R. 5299, legislation which would put restrictions on U.S. tax dollars from being used by the International Monetary Fund (IMF) for bailouts for European countries.

During his appearance on Meet the Press Sunday, NBC’s David Gregory asked Senate Republican Leader Mitch McConnell about his thoughts on the qualifications of Solicitor General Elena Kagan, President Obama’s Supreme Court nominee. Sen. McConnell noted that he’s particularly troubled by the arguments Kagan made in the Citizens United case, where the Court ruled that certain campaign finance restrictions violated the First Amendment. He said, “Solicitor Kagan's office in the initial hearing argued that it'd be OK to ban books. And then when there was a rehearing Solicitor Kagan herself, in her first Supreme Court argument, suggested that it might be OK to ban pamphlets. I think that's very troubling, and this whole area of her view of the First Amendment and political speech is something that ought to be explored by the Judiciary Committee and by the full Senate.”

During one oral argument session, Chief Justice John Roberts asked Deputy Solicitor General Malcolm Stewart, “If it's a 500-page book, and at the end it says, and so vote for x, the government could ban that?” Stewart replied, “We [the U.S. government] could prohibit the publication of the book.”

In the course of a later oral argument, Kagan herself was questioned by Justice Ruth Bader Ginsberg about whether the government (in defending the statute in question) was still arguing it could prohibit publication of things like campaign biographies. Kagan said her office’s view had changed, “The government’s view is that although [the statute] does cover full-length books . . . the FEC has never applied [the law] in that context.” Chief Justice Roberts apparently didn’t think highly of the answer, as he jumped in: “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 to a book, what about a pamphlet?” Kagan responded, “I think a pamphlet would be different.”

Kagan’s argument on pamphlets is certainly worth asking her about when the Judiciary Committee hearings begin. Was she really claiming that the federal government has the power to ban the publication of political pamphlets, considering our nation’s unique legacy of politically influential pamphleteering? Would this statute have empowered the government to ban some of the most famous pamphlets ever published like Thomas Paine’s 1776 call for American independence, Common Sense, or perhaps even the Federalist Papers, penned by founders Alexander Hamilton, James Madison, and John Jay to urge the adoption of the Constitution?

When the Supreme Court eventually issued its decision on the Citizens United case, it rejected Kagan’s arguments. Writing for the Court, Justice Anthony Kennedy, explained, “This troubling assertion of brooding governmental power cannot be reconciled with the confidence and stability in civic discourse that the First Amendment must secure.” In a concurring opinion, Chief Justice Roberts and Justice Samuel Alito wrote, “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.”

Kagan’s arguments in this case need to be explored by both the Judiciary Committee and the full Senate. Political speech is at the core of the protections the First Amendment secures for Americans and this nominee’s views on the matter are quite important for someone tasked with interpreting the Constitution.

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