No, Kagan Does Not Want To Ban Books

Sen. Mitch McConnell’s (R-KY) signature issue is opposition to campaign finance regulation.  McConnell was the plaintiff in a landmark Supreme Court case challenging such regulation (he lost), and he has spent his legislative career opposing laws intended to prevent rich people and corporations have controlling elections.  A US News & World Report profile labeling McConnell the “Darth Vader of reform” sums up his views in three words:  “spending is speech.”

So it’s not suprising that McConnell took to the Senate floor yesterday to attack Supreme Court nominee Elena Kagan as a supporter of campaign finance reform.  Even though 80% of the American people disagree with McConnell on this issue, he has certainly been consistent in advancing his own fringe views.  But McConnell overreaches even further in his attack on General Kagan, claiming that she intends to ban books:

The argument Ms. Kagan and her office chose is that the federal government has the power to ban books and pamphlets.  That is the position of the Solicitor General and her office. . . .  Shortly after she and I met the press reported that she had co-written a memo on campaign finance restrictions when she was in the Clinton Administration.  In it, she says that . . . “unfortunately, the Constitution stands in the way of many restrictions on spending on political speech.”  And she believes that the Supreme Court’s precedents are quote “mistaken” in many cases.  And just last Thursday she told one of our colleagues that the Court was wrong in the Citizens United case because it should have deferred more to Congress.


There are too many things wrong with McConnell’s statement to list here, but one glaring problem McConnell’s apparent inability to read a calendar.  Kagan became Solicitor General on March 19, 2009, but the brief in the case where “Ms. Kagan and her office” allegedly supported book banning was filed in February 2009 — a month before Kagan was confirmed.  At oral argument in that Citizens United case, which took place just five days after Kagan became Solicitor General, one of Kagan’s deputies briefly argued that a law applying certain campaign finance regulations to books would not violate the “freedom of speech,” but that it may violate the “freedom of…the press.”

Several months later, when the case was re-argued in September 2009, Kagan became involved in the case for the first time.  When confronted — again, for the first time — with question about whether campaign finance law could limit the publication of books, Kagan expressly distanced herself from her deputy’s more nuanced position.  General Kagan explained that “[t]he government’s answer has changed” since she took over the case, and that “there would be quite good as-applied challenge” to any attempt to any attempt to any attempt to limit the publication of books.  An as-applied challenge is a lawsuit claiming that the Constitution forbids a law to be used in a certain way.

So Kagan never claimed that government has the power to ban books, as McConnell suggests — indeed, she said the exact opposite.

Later in the same speech, McConnell accuses Kagan of believing that public officials can prevent people from expressing certain political views “just because they don’t like…the speech.”  This claim, however, would come as quite a surprise to Elena Kagan, whose seminal article on the First Amendment expressly states that “the government may not restrict expressive activities because it disagrees with or disapproves of the ideas espoused by the speaker.”

There is barely a sentence in McConnell’s entire floor speech that does not misrepresent General Kagan’s views, but McConnell is right about one thing.  He and Kagan do disagree sharply about whether wealthy corporations should be able to buy elections.  If McConnell really thinks that this is a winning line of attack against Kagan’s nomination, however, he is in for a rude awakening.