The Big Ban Theory
Does Elena Kagan want to ban books? No, and she might even be a free-speech zealot.
But what's a better predictor of Kagan's beliefs on campaign finance regulation? An argument for her client or her own writing on the subject? In a 1996 law review article, Kagan criticized that 1990 Supreme Court case upholding the PAC requirement for corporate express advocacy on grounds that such laws might be a cover for incumbents trying to protect themselves from political competition. Not all liberals believe campaign finance restrictions are constitutional, and some have vocally supported the result in Citizens United.It is quite possible that a Justice Kagan would vote to strike down, rather than uphold, new campaign finance restrictions that come before the court. The truth is that Sen. McConnell may be alienating a future ally in his war on campaign finance laws with the suggestion that she's itching to ban books.
Correction, May 26, 2010: This piece originally stated that Citizens United was reargued in September 2010. ( Return to the corrected sentence.)
Richard L. Hasen is a professor of law and political science at the U.C. Irvine School of Law and author of The Voting Wars: From Florida 2000 to the Next Election Meltdown. He also writes the Election Law Blog.
Photograph of Elena Kagan by Alex Wong/Getty Images.