Solicitor-General Elena Kagan’s Supreme Court nomination confirmation hearing has been all-but-dull in its first two days largely because there’s just not a whole lot of “there” there with the Harvard Law School dean.
She’s never been a judge, barely practiced law and spent most of her prior time in government during the Clinton administration giving policy advice rather than doing law. But there are bits and pieces here and there among the thousands of documents produced for the Senate Judiciary Committee’s review from her career writing that might raise some eyebrows.
For example, in an Oct. 31, 1996, memo to Paul J. Weinstein, Kagan posed this question concerning a legislative proposal to prevent foreign money from influencing U.S. political campaigns: “Doesn’t a ban on contributions from non-citizens raise constitutional difficulties?”
Here’s Kagan’s answer:
“It is unfortunately true that almost any campaign finance reform proposal raises constitutional issues. This is a result of the Supreme Court’s view – which I believe to be mistaken in many cases – that money is speech and that attempts to limit the influence of money on our political system therefore raise First Amendment problems.
“I think that even on this view, the Court could and should approve this measure because of the compelling government interest in preventing corruption. But I also think the Court should re-examine its premise that the freedom of speech guaranteed by the First Amendment entails a right to throw money at the political system.”
It’s not clear from the document if the answer is a suggested response that may or may not reflect Kagan’s personal views. But odds are good that she will be asked during her confirmation hearing about this issue, if not this particular quote.
And she should be asked to address it because using the expenditure of money for advocacy as the pretext to regulate political speech is a big step toward government control of political speech. The American people should know up front if Kagan thinks government should have such a tool to control their political speech.
