The confirmation hearings for Supreme Court nominee Elena Kagan provided a miniature seminar on constitutional law. Kagan was asked over 500 questions and she discussed topics as diverse as gun rights to partial birth abortion. But front and center has been the January 2010 Supreme court case, Citizens United v. FEC. This was the case that granted corporations the same right to spend money on elections as a living, breathing human being.
Both Republicans and Democrats on the Senate Judiciary Committee – who will determine Ms. Kagan’s professional fate – appeared to be largely talking past her when they referenced Citizens United. For Republicans, the case is about an absolutist view of the First Amendment, which equates corporate money and individual speech. Several Republican Senators took the opportunity to repeat Senator Mitch McConnell’s debunked claim that Kagan urged book bans or would censor literature.
Meanwhile, Democrats harped on the Citizens United case as an example of a conservative Court run amuck and a danger to the integrity of the democratic process by unleashing free-spending corporations and unions into the political environment. In particular, Senator Franken among others, worried aloud that as Congress tries to adopt new environmental reforms, consumer protections or regulations of Wall St., lawmakers may be reluctant to anger corporate CEOs with buckets of money to throw into future elections.
Throughout the hearings, Solicitor General Kagan performed the common dance for judicial nominees, pledging fidelity to all Supreme Court precedents no matter how far afield from her own preferences any particular holding may be. Through most of the hearings, it was difficult for viewers to discern how Ms. Kagan personally feels about the underlying legal and social issues.
Ms. Kagan, though, may have inadvertently revealed her personal beliefs when she suggested the Court wrongly decided the Citizens United case. Ms. Kagan argued this case for the government as Solicitor General last September but nonetheless carefully provided the obligatory observation that the Court’s Citizens United opinion – which rejected her own argument on behalf of the government – is established precedent, and, that she would, of course, respect it as such. Asked whether she agreed with the government’s position in the case, she responded “[a]t least for me when I prepare a case for argument, the first person I convince is myself.” In other words, when she argued to the Supreme Court that they should follow over 60 years of federal law to keep corporate dollars out of elections, she meant it.
Thinking Citizens United is wrongly decided puts nominee Kagan in the mainstream of Americans. Polls conducted after Citizens United was decided, suggest 80% of Americans think the case was wrongly decided. The same polls show 72% of Americans want reforms to limit corporate spending, 85% of Americans want to keep foreign-owned corporations from spending on American elections, 80% of voters want shareholders to have the right to vote on future corporate political spending before managers spend corporate funds on elections, and voters support the public financing by a margin of two to one. The polls found these beliefs were held by Republicans, Democrats and independents.
Pending legislation would address Americans’ concerns about Citizens United. The DISCLOSE Act (H.R. 5175) would stop electioneering by certain foreign-owned corporations and would require more transparency with respect to political expenditures; the Shareholder Protection Act (H.R. 4790) would give shareholders a vote on future corporate political spending by managers. And the Fair Elections Now Act (H.R. 1826) would provide public financing for congressional candidates thereby empowering voters, by putting power to fund elections in the hands of small donors. Of course there is a great deal of resistance to these bills by special interests, but Congress needs to show some fortitude in marshalling them to the President’s desk for signature.
Solicitor General Kagan will likely soon be Justice Kagan. But after Congress completes its work on her nomination, it should turn quickly to the task at hand of passing the legislation that will respond to Citizens United. In reviewing these new laws, hopefully the new Supreme Court will have an opportunity to temper Citizens United’s excesses so that corporations can participate in meaningful ways without burying the electoral system under a dump truck of money.