an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Does Elena Kagan Disagree With Justice Stevens On Citizens United?
Looking at Elena Kagan's scholarship, I doubt she agrees with Justice Stevens, who dissented in Citizens United, and suspect she is a defender of corporate speech rights. Since this would surprise some people, I unpack it here in some length (for a blog post).
Supreme Court watchers are expecting big news on Monday. If Politico is to believed, the President will announce his nominee to replace Justice Stevens, and that nominee will be Elena Kagan.
I am still undecided on Kagan (and am sympathetic to some of her defenders' arguments), but want to explore whether Kagan's record suggests she opposes or supports Citizens United and other cases that she (and I) sometime discuss together with campaign finance cases--cases involving cable and phone corporations' "speech" rights. Considering the President's opposition to Citizens United (and the public's), this issue is important.
For the answer, we can turn to one of Kagan's law review articles, which shed some light on how she thinks about these issues. In that article, she discusses two cases, Austin (later overruled by Citizens United) and Turner (which I'll explain here). To understand legal arguments, you have to know the cases discussed, as lawyers think in cases. If a lawyer says she supports Roe v. Wade and opposes Lochner v New York, you know what she means if you know those cases. So let me explain the relevant cases here.
Citizens United, Austin, and Corporate Campaign Expenditures
In Citizens United, the Supreme Court famously held that the government could not limit campaign expenditures from the general treasuries of corporations in the immediate run-up to an election. It was a 5-4 decision along the Court's now-usual conservative-liberal split. Citizens United overruled another decision (which had upheld limits on such corporate expenditures) called Austin (decided 1990).
Barack Obama has criticizedCitizens United more than any other Supreme Court decision. He told Congress (to Alito's displeasure) that it “reversed a century of law” and would “open the floodgates for special interests.” Justice Stevens authored Citizens’s principal dissent. When Stevens retired, Obama said he would nominate someone “who, like Justice Stevens, knows that in a democracy, powerful interests must not be allowed to drown out the voices of ordinary citizens.”
Kagan, of course, actually argued Citizens United for the Obama administration; but that doesn’t mean that she agreed with her client's position. It was her job as Solicitor General to represent her client (which Justice Roberts' confirmation reminded us), which she does in all her arguments, even in her less popular arguments. Further, in Citizens, Kagan did refuse to argue the case based on the rationale of the existing precedent.
The Rule/Exception/No-Distinction Model of Legal Argument
To understand legal scholarship, beyond knowing the key cases, it helps to know one very common method of making arguments, which is relevant to this post.
Essentially, there are three steps.
1. The Rule. You list a few Supreme Court decisions that you say all follow the same principles, which set out a general "rule."
2. The Exception. You list one decision (or two) you say doesn't follow the rule, and is an exception.
3. No-Distinction. You then determine there's no good reason for distinguishing the exception from the rule. Nothing special justifies the exception.
Conclusion: the exception should be overruled, as it unjustifiably conflicts with the rule.
This general model is very common.
To shoot fish in a barrel, let's look at Citizens United. Both the majority and the dissent follow this model. The conservative majority says, "The overwhelming rule among all our decisions is simple: corporations can't suffer under special speech restrictions. Austin said the opposite and is a lone exception. Nothing adequately distinguishesAustin. Let's overrule."
The more liberal dissent, of course by retiring Justice Stevens, said, "The majority ignored and misread our case law, and the rule is that government can consider corporations' nature (they're artificial, have government benefits, and are potentially corrupting) when restricting their campaign activities. Austin is therefore not an exception but fits with the rule of many cases; actually, the majority in Citizens will be an exception. Nothing distinguishes Citizens from the rule. This case, Citizens, should eventually be overruled."
Considering Kagan's Scholarship
You can guess where this post is going. In one of Dean Kagan's few major law review articles, she describes the legal "rule" in agreement with Citizens United's conservative majority, not Stevens' dissent, and says Austin can't be distinguished. She does something similar for phone and cable companies (as I'll explain), again siding with the largest corporations (and Justices Antonin Scalia and Clarence Thomas) over Stevens.
In the common language of law review articles, the conclusion can almost be implied: these exceptions should be overruled, as they are unjustified exceptions in the law.
Kagan's Private Speech, Public Purpose
As reporters have noted, Kagan’s scholarship is “dense” and “technical,” and there’s not much of it (as she spent a lot of time in government and as a dean). But her scholarship seems to reject the Stevens/Obama position on Austin and Citizens United and support the conservatives' position—even if it does so densely and technically.
One of Kagan’s few major articles is called Private Speech, Public Purpose. It was published in 1996—long before Citizens, but it discussed Austin, the case Citizens overruled. I will focus on pages 464-472, for anyone interested in rebutting or confirming my thinking here.
In these pages, Kagan discusses what she calls the Buckley principle (named after a case). That “Buckley principle” states that government may not “restrict the speech of some elements of our society [think: powerful corporations] in order to enhance the relative voice of others [think: average individuals].” Her Buckley principle is almost the opposite of the Obama statement that “powerful interests must not be allowed to drown out the voices of ordinary citizens.”
How does Kagan treat the Buckley principle? It is her First Amendment "rule." She says the principle “has ramifications far beyond the area of campaign finance. It applies as well to a wide variety of schemes designed to promote balance or diversity of opinion.” By “applying” to those schemes, she suggests it forbids them.
More specifically on corporations, she wrote:
Campaign finance laws like those in Buckley easily can serve as incumbent-protection devices, insulating current officeholders from challenge and criticism.
When such laws apply only to certain speakers or subjects, the danger of illicit motive becomes even greater; for example, the law in First National Bank v Bellotti [cited repeatedly by the Citizens conservative majority], which barred corporations from spending money in referendum campaigns, almost surely arose from the historic role of corporate expenditures in defeating referenda on taxation.
The last sentence above suggests that laws singling out “certain speakers”— only corporations, for example—are most likely to reflect an illegitimate speech-motive, and therefore to violate the constitution. That would agree with the Citizens conservatives. This is her rule.
What is the exception? What else? Austin. The case overruled by Citizens. It is a "lapse."
She presents Austin not as a rule (or an overriding "principle" like Buckley's) but merely an example of where the Court’s “commitment to the Buckley principle” has “lapsed on some occasions.” She notes that Austin rested on Obama’s rationale—one she seems to have abandoned in the the Citizens argument--that “corporate wealth could cause ‘distortion’ and ‘unfairly influence elections.’”
And can we distinguishAustin? Turns out, nope.
In a footnote, she explains that the Court failed to convincingly distinguish Austin from the Buckley principle. In fact, Kagan cites the exceptional Austin three other times in the article—but each time she cites not to the Austin majority (supporting Obama/Stevens), as one would expect, but to the Scalia dissent. And she does so generally to use Scalia’s points to support her own.
Kagan's Parallel Argument: Comcast, Time Warner Cable, Verizon, and AT&T
Whether the First Amendment bans government restrictions on corporate campaigning is one question.
Another question is whether the First Amendment bars governments from imposing some regulations on cable and phone companies. Nearly every day, lawyers for the cable and phone companies argue that any regulations of their industries burden their "speech" rights. In arguing against net neutrality--a rule prohibiting phone and cable companies from implementing their plan to restrict users' accessto an open Internet--the companies argue they have a First Amendment right to block websites and technologies on the Internet, for example (seehere and here, here, here).
Yes, it's a pretty crazy argument. But it's one that several judges, and maybe Elena Kagan, have some sympathy for.
In her article, she discusses a major case called Turner, and she seems to agree with the cable companies' most aggressive arguments.
To keep it (overly) simple here—Turner, in the mid-1990s, upheld a congressional statute meant to promote diverse speakers on the cable platform. Cable operators argued that Congress was unconstitutionally “burdening” the “speech” rights they have to determine exactly which channels their subscribers will receive.
A Supreme Court majority rejected that argument and upheld the law. Stevens wrote separately to say he would have gone even farther than the majority in deferring to Congress on this law.
Rule: Because Turner upheld a law meant to promote diverse speakers, Turner does not support Kagan's broad reading of the supposed Buckley "rule" that government cannot limit some speakers in increasing the speech opportunities of others. In fact, Kagan says that the Buckley principle “could summarize the view” of the Turner dissenters, who sided with the cable companies.
Exception: Turner contradicts her Buckley rule. As did Austin.
No-Distinction: Can Turner be distinguished from Buckley's rule? Kagan says no, again, in a footnote. (Her point is that the cable rules "may be said to constitute a direct restriction” exactly like one in Buckley.)
So, once again,to Kagan, when a Court permits government to adopt a law for the largest corporations meant to promote diverse speech, it is an unjustified exception.
Am I Jumping To Conclusions?
Here is the conclusion I am reaching: the implication of her arguments are that Austin should be overruled (Citizens United did that) and so should Turner, under the standard argument model, because they are "exceptions" to the broad rule. She does not explicitly call for their reversal, but the argument structure almost necessarily implies it.
My caveats are:
1. She didn't come right out and say the cases should be overruled. She just made every other step in the argument, and didn't state the usual conclusion. Maybe that means she disagrees with overruling the cases. But there's little indication of that either.
2. Kagan wrote this article 14 years ago, and both the law and Kagan herself have changed since. She may have a different view of the rule and the exception for campaign finance and cable, or a different view of how they apply. She doesn't have a detailed record on the question.
3. Kagan's article claims to be descriptive, not normative. That is, she claims largely to be describing case law, not endorsing it. But many people who support Austin and/or Turner would describe the law differently than she did--including Stevens in his Citizens dissent, and Turner in its majority, and scholars like C. Edwin Baker (also here), Jack Balkin, Yochai Benkler, and others.
In her descriptive story, she admits that the Buckley sentence she takes as a principle is among the “most castigated passages in modern First Amendment case law.” Justices Breyer and Justices Stevens have both stated that the Buckley claim descriptively “cannot be taken literally,” as it would make time-limits on congressional speeches unconstitutional. It would also make copyright unconstitutional, as copyright silences copiers to increase the relative voice of creators. Yet, for Kagan (and Scalia, not Stevens or Breyer), descriptively, the Buckley sentence passage reflects a general rule.
Beyond description, Kagan seems to defends the Buckley principle as a means for judges to determine improper government motives regarding speech—using as an example limiting campaign expenditures by corporations, quoted above.
Does Kagan support a broad reading of Austin and Turner, or a broad reading of Buckley, Citizens, and the Turner dissent and the Austin dissent?
I am confused as to the disagreement between you and Professor Tushnet. He says that he disagress with your interpretation of Kagan's article, but his brief discussion sounds identical to your take on the matter.
Assuming tha the two of you are correct in your reading of Kagan's article (which I haven't read), it seems to me that you may have glided over the more important point. Whether or not Kagan as a justice would have agreed with the Citizens United majority (or, if she has the chance, would vote to overturn the decision) is pretty much unknowable. But it appears from your discussion that Kagan views the First Amendment claim presented in Citizens United as a serious one. That in itself puts her at odds with the president, who has portrayed CU as a completely baseless reflecting only the political preferences of the majority.
I'm not terribly relieved at the thought that Kagan might be aware, when she votes to overturn CU, that the opposing position is serious. I suspect that Obama is aware, rhetoric aside, that it's serious. He just doesn't care.
I do not believe that the SG is actually required by her job to argue before the Supreme court that book banning is constitutional. And yet, Kagan did. I expect she'll be a civil liberties nightmare.
I'd take some comfort in the lousy job of vetting nominees this administration does, if I'd seen any sign that they screwed up concerning anything about the nominee they actually care about.
My impression is that Obama thinks Citizens United is wrongly decided and the results will be terrible.
I did not get "a completely baseless reflecting only the political preferences of the majority" or "not serious." And, "activist" alone doesn't translate into that.
Though, yes, some critics surely said that. As to vetting problems, that depends on what Obama wants from Kagan.
I'm not really enamored on the choice, but I doubt it's a result of not vetting her. My concerns about her being something of a blank slate, not strong enough on some of the judicial ideology issues I care about and the better options available doesn't rest on that.
While the they claim the GOP has a litmus test for judicial nominations, the Dems have a far better track record of nominating a consistently progressive judiciary than the GOP has of nominating consistent conservatives. It would be a bit of karmic justice of Kagan turned out to be the Dems' Souter or at least their O'Connor.