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 msl46 at law.georgetown.edu
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
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.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
Elena Kagan and Anti-Distortion of the Speech Market
A few weeks back, I posted a long blog post about Elena Kagan's scholarship and what it suggests about her views on Citizens United and the constitutionality of standard media regulation. Because I spent the next week talking to people about the post, I reviewed her scholarship again and had some more thoughts. I figured I would post these thoughts, more for discussion than anything else.
So here is another long, geeky post (almost embarrassingly long) about scholarship and legal doctrine. Scholars write such things about Justicessometimes, so why not about nominees?
I think her scholarship (albeit from last decade) raises interesting questions about her support for some of the positions held by Justice Stevens and President Obama.
This post is not about any particular decision but about a group of "rationales" often advanced by government to defend the constitutionality of adopted laws. Specifically, the post is about “anti-distortion” rationales—that is, government rationales used to justify speech rules bases on the existing (or potential) speech environment being “distorted” by certain factors (like wealth inequality). Both Obama and Stevens appear sympathetic to anti-distortion rationales, for example, regarding corporate campaign expenditures to un-distort a speech environment that drowns out the voice of ordinary citizens.
It appears that Obama and Stevens are fans of anti-distortion rationales while Dean Kagan likely is not. In Citizens United, Dean Kagan famously downplayed, if not abandoned, these rationales. She refers to them in one academic article as even “dangerous.” Sometimes, she even seems to caricature these arguments—which is unusual for her, as her scholarship is generally remarkably nuanced (and brilliant).
In terms of sources, I will discuss primarily a short passage in Kagan’s first article and Kagan’s argument in Citizens United, as well as their relation to the longer passage in Kagan’s scholarship that I discussed in my previous post. Like my last post, this one will be long (for a post) and will discuss legal scholarship and Supreme Court cases. Again, I’ll name the articles and even the pages (or “find”-able quotes) so others can look to the sources and reach perhaps other conclusions, if they're interested. And, again, there are important caveats, so it’s not a slam-dunk case.
So before the fold, I'll present the argument in brief.
Argument in Brief
There are at least two relevant anti-distortion rationales that government can assert to defend speech rules, a broad rationale based on massive wealth inequality distorting speech and a narrow rationale based on the existence of corporate legal rules. Obama and Stevens have voiced support for even the broad rationale, while the Austin majority rested only on the narrow one. Thus, while it is unsurprising Kagan’s argument in Citizens rejected the broad rationale, it is perhaps telling that she did not advance even the narrow rationale in the briefs. In addition, her two major First Amendment articles in the 1990s depicted the broad and narrow anti-distortion rationales by turns as indistinguishable from one another, as conflicting with the First Amendment itself, and even as "dangerous."
Of course, many caveats must be considered in this somewhat academic exercise. Argument
Let’s begin with considering “anti-distortion.” Anti-distortion is merely a rationale. If someone challenges a rule as unconstitutional, courts will often look at the rationale underlying the rule and determine whether the rule “fits” tightly with that rationale. The government rationale for a challenged rule could be anything from “government’s concern for an unborn child,” “government’s concern for the health of workers,” or “government’s interest in increasing private-sector employment.” (I’m going to ignore fit here.)
A Justice could vote to uphold a government law (i.e. decide it is not unconstitutional) based on one rationale, but reject other possible rationales. For example, in arguing Citizens United, Kagan advanced two rationales: that limiting corporate expenditures from the corporate treasury right before an election (1) limits corruption of elected officials, who might otherwise become beholden to corporations, and (2) protects shareholders who disagree with their corporation’s campaign expenditures. Kagan didn’t really advance any anti-distortion rationale.
Several different rationales could be described as “anti-distortion.” Consider these different kinds of distortions that government may want to combat: (a) “all corporate money naturally drowns out the voices of ordinary people, distorting the speech environment,” (b) “foreign corporate money is drowning out the voices of American people, distorting the speech environment,” or (c) “an economic or technological market failure is now enabling one speaker to silence many speakers, distorting the speech environment.”
In considering Kagan’s work, it’s helpful to think specifically of two versions of the anti-distortion rationale implicated in cases like Citizens United and Austin--one broad, and one narrow.
Broad Anti-Distortion (Equalization of Speech in Light of Unequal Wealth). Under this view, the speech environment is distorted by our society’s wealth and resource inequality. Wealth can affect constitutional rights in different ways. Everyone can cast an equal vote at the polls, despite wealth inequality. This is not so with speech; Bill Gates and AT&T both have far more resources than Average Joe has, and (if spending money is speech) Bill Gates can speak far louder than him. Perhaps the opportunity to participate in our democracy’s discourse should be—if not equal, like voting—at least more equal, despite our society’s vast discrepancies in wealth. This is the anti-distortion of Obama and, apparently, Justice Stevens.
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.” This is simply a wealth distortion argument about "powerful interests" and "ordinary citizens."
I believe the Government has an important interest in leveling the electoral playing field by constraining the cost of federal campaigns. . . . It is quite wrong to assume that the net effect of limits on contributions and expenditures—which tend to protect equal access to the political arena . . .—will be adverse to the interest in informed debate protected by the First Amendment.
I don't mean to overstate Stevens' sympathy for the anti-distortion rationale, but this strikes me as support for the broad version of the rationale.
Narrow Anti-Distortion (Corporate Law). The narrower version focuses on corporate law not wealth. Under this rationale, it is corporate law distorts the speech environment. Through laws structuring and enabling corporations, government confers benefits on corporations through corporate law, primarily so corporations can aggregate and create wealth for their shareholders and the public. These benefits include limited liability and perpetual life. When corporations spend unlimited sums on campaigns, they take advantage of these legal/economic benefits to flood the speech market with their corporate views. As a result, apparent support for particular messages is exaggerated far beyond their actual support among real people. Pro-BP and pro-Exxon messages might overwhelm the airwaves and newspapers while the actual support for BP's and Exxon's messages is low. Government can “un-distort” this corporate-law-induced speech-distortion, such as through campaign finance limits, including corporate spending limits in the last weeks of an election.
Austin Rested on the Narrow Rationale
According to Justice Stevens, the majority opinion in Austin (the case overruled by Citizens United) rested on the narrow, not broad, anti-distortion rationale. He wrote, in dissent in Citizens United:
The majority suggests that Austin rests on the foreign concept of speech equalization, but ... we expressly ruled that the compelling interest supporting Michigan’s statute [in Austin] was not one of “ ‘equaliz[ing] the relative influence of speakers on elections,’ ” but rather the need to confront the distinctive corrupting potential of corporate electoral advocacy financed by general treasury dollars.
That is, while Stevens seems to support the broad anti-distortion rationale, himself, the majority of five Justices in Austin appeared to have accepted only the narrow, corporate, anti-distortion rationale.
Three Sources for Kagan's Thoughts
I look at two of Kagan's academic articles and her argument in Citizens United, though not in that order.
(A) Kagan and Distortion in Private Speech, Public Purpose
In Kagan's most-cited law review article on free speech, published in 1996 and entitled Private Speech, Public Purpose (which I also discussed last post), Kagan argues that there is no real difference between the broad and narrow anti-distortion rationales.
The New York Times quotes the key language from her article. In her article, Kagan responded to the argument that campaign finance regulation is constitutionally permissible “on the ground that corporate wealth derives from privileges bestowed on corporations by the government.”
“This argument fails,” Ms. Kagan wrote, “because individual wealth also derives from governmental action.”
It is for this reason, actually, that she suggested Austin could not be distinguished from other cases, enabling individuals to spend unlimited sums.
So, first, the narrow anti-distortion rationale cannot be distinguished from the broad.
Next, Kagan describes the broad anti-distortion rationale as possibly at odds with the First Amendment itself, at least as a descriptive matter: "The Court said not that this interest was insufficient, but that its very assertion conflicted with fundamental premises of the First Amendment."
If the broad anti-distortion is an impermissible rationale (like the "rationale" to silence dissent), descriptively, laws resting on broad distortion should trigger at least strict scrutiny.
As a result, this article suggests that Austin rests on a rationale indistinguishable from the broad rationale--a broad rationale she describes as impermissible under the First Amendment.
(B) Kagan and Distortion in Citizens United
Years later, when serving in the much different capacity of Solicitor General arguing arguing Citizens United, Kagan did distinguish practically between these two rationales. In Citizens, she was representing a client (the Obama administration) before a hostile court, so her argument may say little about her own views. The President has suggested the opposite about Kagan arguing Citizens as her first case: "I think it says a great deal about her commitment to protect our fundamental rights." Whether her argument says very little or a great deal, her argument clearly did not rest on either anti-distortion rationale.
At oral argument, she endorsed the narrow form of anti-distortion in passing, and clearly repudiated the broad form. In briefing, she referenced neither. (Justice Roberts emphasized this omission "most importantly" in his concurrence.)
Here is the Kagan-Roberts discussion at oral argument where she distinguishes between the broad and the narrow anti-distortion rationales. I bold and label the references to broad and narrow anti-distortion.
CHIEF JUSTICE ROBERTS: Counsel, what do you -- what do you understand to be the compelling interest that the Court articulated in Austin? GENERAL KAGAN: I think that what the Court articulated in Austin -- and, of course, in the government briefs we have suggested that Austin did not articulate what we believe to be the strongest compelling interest, which is the anticorruption interest.
CHIEF JUSTICE ROBERTS: So -- so am I right then in saying that in the supplemental briefing you do not rely at all on the market distortion rationale on which Austin relied? Not the shareholder rationale, not the quid pro quo rationale, [but rather] the market distortion issue. These corporations have a lot of money.
GENERAL KAGAN: [Broad anti-distortion rejected:] We do not rely at all on Austin to the extent that anybody takes Austin to be suggesting anything about the equalization of a speech market. So I know that that's the way that many people understand the distortion rationale of Austin, and if that's the way the Court understands it, we do not rely at all on that.
CHIEF JUSTICE ROBERTS: So if we have to preserve -- if we are going to preserve Austin we have to accept your invitation that the quid pro quo interest supports the holding there or the shareholder protection interest.
GENERAL KAGAN: I would say either the quid pro quo interest, the corruption interest or the shareholder interest, or what I would say is a -- is something related to the shareholder interest that is in truth my view of Austin, [narrow anti-distortion offered] which is a view that when corporations use other people's money to electioneer, that is a harm not just to the shareholders themselves but a sort of a broader harm to the public that comes from distortion of the electioneering that is done by corporations.
A lot of people have criticized Kagan for discarding the anti-distortion rationale(s) in urging the Court not to overrule Austin, especially since Austin itself rested on an anti-distortion rationale. In her defense, at argument, Kagan only discarded the broader anti-distortion rationale that, according to Justice Stevens, Austin did not even rest on. Therefore, Kagan was probably arguing based on the same conclusion that Austin did not rest on a broad anti-distortion rationale. So her argument on the broad rationale makes perfect sense, if Kagan did not want to advance a new, broader, rationale for Austin.
As for the narrower rationale, it seems odd that she didn't push this argument harder, as Austindid rest on this rationale. Rather, she argues in the briefs that the government thinks another rationale, anti-corruption, which was not accepted in Austin, is the stronger rationale.
You get the feeling that Kagan just does not find the anti-distortion rationale very persuasive. She said the government thinks Austin didn't pick the best rationale, and then she hardly advances Austin's actual rationale.
Nonetheless, I have grown more sympathetic to how she argued CitizensUnited--just as she implied in her article many years earlier, it would be hard to limit the anti-distortion rationale to corporations. If government can regulate corporate aggregations of wealth because these aggregations can over-represent public support for a point of view (distorting the speech environment), why not regulate individual aggregations for the same reason? Billionaires, not just corporations, can speak more loudly than Average Joes, and distort the speech environment no less. Therefore, some would conclude that government should be allowed to limit expenditures from both individuals and corporations--but this Court would have never accepted that argument, and individual speech wasn't at issue in Citizens anyway. Also, another court might have agreed that government can structure and limit corporations--which are creatures purely of law--broadly for public ends and in ways government cannot structure and limit individuals. But, again, it's unlikely this Court would have been receptive to the argument.
That doesn't change the inference you get from both Private Speech, Public Purpose and her Citizens United strategy, where she argues Austin, resting on narrow anti-distortion, did not rest on the most compelling rationale. It seems she doesn't find the broad or the narrow anti-distortion rationale very persuasive.
In addition, her first article also sheds some more light.
(C) Anti-Distortion in The Changing Face of First Amendment Neutrality
Elena Kagan's first major First Amendment article, The Changing Face of First Amendment Neutrality, was published in 1992 in the Supreme Court Review. The article, taken as a whole, strikes me as a pretty brilliant discussion of government attempts to promote speech where the speech at issue is neither constitutionally protected (such as threats) nor constitutionally compelled (like speech funded by government). That is, if government doesn’t have to protect or promote certain speech at all, which kinds of selective laws affecting that speech will still violate the First Amendment? (These thoughts strongly influenced an article I published last year, where I also argued that the distinction between subject-matter discrimination and viewpoint discrimination was overlooked and important across several similar doctrinal areas, and properly so.)
In addition to its brilliance, Kagan's article includes an interesting, suggestive passage about anti-distortion rationales. The passage is a substantive footnote (common in law review articles) explaining why Kagan focuses on government’s deliberate attempts to distort the speech market, rather than government attempts to counter private speech distortion (by the wealthy or by private corporations). She writes, in note 89:
The notion of a skewing effect, as set forth in the text, of course assumes that distortion arises from government, rather than from private, action. That assumption may be misplaced. If there is "too much" expression of a particular idea in an unregulated world, then government action specially disfavoring that idea might "un-skew," rather than skew, public discourse. [Two citations] ... [A side point about speech without constitutional protection.] Nonetheless, I think the assumption used here to measure distortion is generally, although not invariably, proper. Any other would allow the government too great-and too dangerous-an authority to decide what ideas are overrepresented or underrepresented in the market.
So two things to note.
First, she considers the anti-distortion rationale to be potentially dangerous. Notably, this passage does not purport to be descriptive. She is stating a normative preference—anti-distortion rationales are dangerous.
On some rules, Kagan is evidently right. Based on the type of rule justified by the rationale, the rationale could be dangerous; for example, I think the conservative bete noire, the fairness doctrine, is potentially dangerous, even if some might justify it based on anti-distortion. But other rules inspired by the anti-distortion rationale are not necessarily or particularly dangerous, including campaign expenditure limits and media ownership limits that would keep cable or broadcast companies from consolidating into giant "media monopolies." (Some believe media ownership limits are inspired only by anti-distortion, whereas I believe they rest on broaderstructural considerations). But, unlike Justice Stevens and President Obama, Dean Kagan’s default position on anti-distortion rationales is that they are dangerous, not that they benefit ordinary Americans.
Second, in her 1992 article, Kagan very oddly caricatures the anti-distortion position. While Kagan is usually a remarkably careful and nuanced scholar, she mischaracterizes both the anti-distortion position and the articles she cites for the position. (I realize no scholar can defend every footnote they've ever written, but caricaturing the anti-distortion argument seems telling of Kagan's views at the time, or maybe of academic interest.)
She cites two articles, one by Yale professor Owen Fiss (100 Harv L Rev at 786-87), one by Cass Sunstein (59 U Chi L Rev at 295-97).
Kagan seems to mischaracterize the anti-distortion rationales. She posits a premise where government action would "specially" disfavor an idea if "there is 'too much' expression of a particular idea in an unregulated world." That is neither what Fiss nor Sunstein (nor anyone else) argue. Yet Kagan seems to attribute this argument to them, in citing them for the argument. Rather, the idea isn't to disfavor a particular idea; it's to limit how much money a corporation can spend from its general coffers in the last days of an election or how many broadcast or cable systems any one company can own. These are rules of the road for speech based on many rationales: from anti-corruption to the distorting effects of corporate expenditures. Neither Fiss nor Sunstein suggests picking and targeting particular ideas that are "expressed" "too much." Sunstein, in the pages Kagan cites, argues: "Instead of allowing restrictions, we should encourage efforts to promote a better status quo." Fiss argues, in the cited pages, merely that we should be skeptical of government action, but that government can sometimes promote public debate, and we should not presume other powerful institutions (like CBS at the time) can never inhibit public debate. This strikes me is a far cry from specially disfavoring certain "ideas" expressed "too much." Anyone would consider such a proposition to be "dangerous," including Sunstein and Fiss, I assume.
On a finer point--neither of them would characterize the world as "unregulated." The myriad intricate corporate, tax, property, and contract rules regulate our world and shape even the speech environment. As Sunstein says in the article she cites: "The problem is not that private power is an obstacle to speech . . . The real problem is that public authority creates legal structures that restrict speech."
My main caveat for this passage is that, in the mid-1990s, some liberals (like Sunstein and Fiss) were making a range of First Amendment arguments generally rejected by other liberals (like Kagan). Fiss and Sunstein generally defended a range of regulations imposed on broadcasters, which were upheld in cases like NBC v. US (upholding broadcast network and station ownership limits), NCCB v. FCC (upholding limit on newspaper owners owning broadcast stations in the same town), CBS v. FCC (upholding reasonable access to broadcasting by electoral candidates), and Red Lion v. FCC (upholding the fairness doctrine, in 1969).
Red Lion was not a popular case then among liberal scholars (or any scholars), and liberal scholars seemed critical of all broadcast decisions based on Red Lion alone. To the extent Fiss and Sunstein showed some support for broadcast cases and broadcast doctrine, more centrist liberals like Kagan would distance themselves from Fiss and Sunstein.
Kagan’s willingness to distinguish herself from Fiss and Sunstein strike me as expected in the early 1990s. It says little about her views now. Indeed, since 1992, the debate on media policy issues has shifted considerably because of new technologies like the Internet and the writing of scholars like Larry Lessig, Yochai Benkler, and C. Edwin Baker.
Beyond that, I include the usual caveats on this passage—Kagan wrote it years ago and it’s a pretty general point, so it may not predict her stance on particular cases. Plus, she's only disagreeing with a weak (if straw-man-like) argument.
Based on these thoughts, for what they are worth, I think it makes sense for Senators to ask Dean Kagan not just about her views on Austin, Turner, and Citizens United, but also on particular rationales, like the broad and narrow anti-distortion rationales, and to ask about them particularly in relation to specific rules that have been litigated.
Kagan’s views on the constitutionality of rules limiting corporate campaign expenditures or limiting excessive consolidation of media power are highly important—as the President himself has acknowledged repeatedly.
Between questions about social issues and photos of softball, I hope she gets the opportunity to discuss these as well.
Final Note: I’m already on record as generally supportive of the Kagan nomination. I don’t think you try to sink a nomination based on inferences from law review articles on anti-distortion rationales justifying speech rules—but the President has placed these rationales front-and-center in nominating the candidate, and what better time to discuss them? Posted
by Marvin Ammori [link]