President Obama’s evident desire to use the Stevens vacancy to continue to demagogue the Supreme Court’s campaign-finance ruling in Citizens United will be considerably complicated if he selects Solicitor General Elena Kagan as his nominee to replace Stevens. This New York Times article highlights what I have repeatedly emphasized: Kagan, in arguing the Citizens United case, abandoned the actual rationale of the Court’s 1990 ruling in Austin v. Michigan Chamber of Commerce and thus (in the words of the NYT article) “threw overboard the interest mentioned by President Obama, that the government may limit corporate speech to make sure it does not distort the marketplace of political ideas.”
It’s also worth highlighting that virtually no one seems to defend the actual position taken by Justice Stevens and the other dissenters in Citizens United. Even Linda Greenhouse takes the view that the provision that the Citizens United majority invalidated—and that the dissent would have left in place—“was overly broad and cut off too much legitimate speech.” What Greenhouse and some other critics of the majority ruling posit is that there was a narrower ruling that the Court could have issued. But it’s striking that none of the nine justices found tenable the narrower grounds that these critics propose.
As Chief Justice Roberts pointed out, the theory of the First Amendment advocated by Kagan on behalf of the Obama administration “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.” The next time that President Obama demagogues about Citizens United, someone ought to ask him whether he really believes that the First Amendment allows the government to prohibit newspapers owned by corporations from running editorials or opinion pieces supporting or opposing candidates for office.