Elena Kagan: A Justice for Every American

May 11, 2010
Guest Post

By Jeffrey D. Clements, Principal, Clements Law Office, LLC. Mr. Clements filed an amicus brief in the Citizens United case on behalf of several democracy advocacy organizations, and serves as general counsel of Free Speech for People. He is also author of the ACS Issue Brief "Beyond Citizens United v. FEC: Re-Examining Corporate Rights."

The Virginia tax-exempt corporation calling itself Citizens United has come out swinging against President Obama's nomination of Solicitor General Elena Kagan to be an Associate Justice of the Supreme Court. The organization's president, David Bossie, takes umbrage with President Obama's statement that Ms. Kagan fights for ordinary citizens as shown by her argument "in the Citizens United case, [where] she defended bipartisan campaign finance reform against special interests seeking to spend unlimited money to influence our elections."

Citizens United, of course, is responsible for the Supreme Court's now notorious 5-4 holding in Citizens United v. Federal Elections Commission that created, for the first time in American history, "corporate speech" rights for all corporations that are equivalent to the people's speech rights for purposes of expenditures in American campaigns and elections.

Justice Kennedy's majority decision did not define or explain the legal meaning of "corporation," the entity to which the campaign finance restriction at issue actually applied. Instead, "identity of the speaker" was deemed an irrelevancy, and corporations simply became another "speaker," "voice" or "disadvantaged person or class" which cannot be singled out for regulation of political expenditures without violating the First Amendment's free speech clause.

This conclusion, as retiring Justice Stevens put it in his dissent, is a "radical departure" from First Amendment jurisprudence, and has been widely condemned by the American people. According to a February Washington Post-ABC News poll, 76 percent of Republicans, 81 percent of Democrats, and 85 percent of independents reject the holding. In response to the decision, thousands and thousands of Americans have called for a Constitutional amendment, several amendment bills have been introduced in Congress, resolutions calling for an amendment have been introduced in several state legislatures, momentum is building for public financing of elections, and reforms and restrictions on corporate political activity are moving through Congress and numerous state houses across the country. In short, the American people seem to agree with President Obama's condemnation of the Citizens United decision as a "strike at democracy itself."

Yet, according to Mr. Bossie, Ms. Kagan should be defaulted as a nominee to the Supreme Court because as Solicitor General she argued against Citizens United's attack on the American people's effort to restrain corporate expenditures in elections:

Given President Obama's reliance on her role in Citizens United v. Federal Election Commission and the essential importance of the First Amendment to American democracy, I urge the Senate to reject Elena Kagan's nomination to the Supreme Court. Every American has a fundamental right to speak out for or against their elected representatives without fear of reprisal, and a nominee who does not respect that right has no business on our nation's highest court.

I believe we all share the proposition that "every American has a fundamental right to speak out for or against their elected representatives without fear of reprisal." With all due respect to Mr. Bossie, however, corporations are not included in most people's definition of "every American."

The Citizens United decision has nothing to do with whether "every American has a fundamental right to speak out." Respectable arguments can surely be made on both sides of the question of whether the corporate expenditure restrictions of the Bipartisan Campaign Reform Act applied so as to limit promotion of Citizens United's movie attacking Hillary Clinton as a presidential candidate during certain thirty-day and sixty-day periods before federal elections. The Court's holding, however, made those arguments irrelevant.

Instead, the Court struck down the corporate expenditure restriction entirely, and went out of its way to effectively strike down any similar state law restriction. Under the Citizens United decision, Americans at every level of government are not permitted to restrict corporate political expenditures, whether the restriction is applied to a non-profit corporation using corporate funds to make a political infomercial, or to BP, Exxon, AIG, Goldman Sachs, or any other corporation spending any of the billions of dollars in corporate profits to ensure compliant officeholders, from Congress, to State Houses, to City Councils and School Committees.

President Obama is correct. We do need Supreme Court Justices who remember that ordinary citizens are what the Bill of Rights and our self-government under the Constitution are all about. But we need something else. We need Supreme Court Justices who remember that in some instances unexamined or sloppy metaphors can mislead and obscure rather than explain.

Corporations are not Americans. Corporations are not people. Corporations are not "a disadvantaged person or class." The expenditure of corporate general treasury funds to influence election outcomes is not "speech" or "voices." The people's right of free speech should not be invoked to block the people from enacting responsible regulations of corporate conduct.

It is responsible indeed for any President who seeks to protect our democracy to keep the disastrous Citizens United holding in mind when nominating a Supreme Court Justice. And it is a hopeful sign that Solicitor General Kagan appears to be a precise and careful thinker who will not substitute careless metaphor for careful analysis.