Senator Mitch McConnell—perennial enemy of all attempts to limit the role of money in politics—has been on the attack again. This time, U.S. Supreme Court nominee Elena Kagan is in Mr. McConnell’s cross hairs. The Senate Republican leader from Kentucky says nominee Kagan is hostile to the First Amendment because while serving as solicitor general she defended a 63-year-old law that bans the use of the corporate money in federal elections. In the Citizens United case, the stakes could not have been higher: The case asked the Court to decide whether corporate money should be allowed in American elections? Ms. Kagan argued yes, corporate money should be kept on the sidelines.
Argument She Did Not Make
Anomalously, the Supreme Court heard two oral arguments in Citizens United. The first time around, the case was not argued by Ms. Kagan (she had not yet been confirmed), but instead by a career attorney in the solicitor’s office. Unfortunately, he fell into a trap laid by Justice Samuel Alito Jr. The case, as some may remember, raised the very limited legal question of whether a pay-per-view movie hostile to Hillary Rodham Clinton made by a non-profit organization, but paid for with some for-profit corporate money, should be kept off the air during the 30 days before a presidential primary, per the requirements of a 2002 campaign finance law. But during the first oral argument, the government’s lawyer conceded to Justice Alito that if the Court ruled as he was urging, the government could have the authority to ban books paid for with corporate funds. As he stated, “We [the government] could prohibit the publication of the book using the corporate treasury funds.”
