Litigation

Kagan Argued ?Citizens United,? and Lost

By Peter Hardin

When President Obama formally nominated Elena Kagan to the Supreme Court, he assailed “unscrupulous corporations” and “special interests” that work to sway U.S. elections and noted Kagan’s role in a related blockbuster case.

“During her time in this office, she has repeatedly defended the rights of shareholders and ordinary citizens against unscrupulous corporations,” Obama said, according to a Reuters article. In Citizens United v. Federal Election Commission, she “defended bipartisan campaign finance reform against special interests seeking to spend unlimited money to influence our elections,” he added.

As U.S. solicitor general, Kagan argued a position that the high court did not accept when it voted 5-4 to permit unlimited corporate spending on federal elections. Obama has sharply criticized the court’s decision, and today he commended Kagan for arguing on behalf of the government in her first case before the court.

“It says a great deal about her commitment to protect our fundamental rights, because in a democracy, powerful interests must not be allowed to drown out the voice of ordinary citizens,” he said.

A SCOTUSblog discussion of the top 10 issues likely to be debated during the confirmation proceedings included Citizens United, suggesting the Obama administration would try to use the campaign finance case to show “understanding the problems of ordinary Americans, not big companies.”

In his Election Law blog, scholar Richard Hasen wrote that Kagan’s Citizens United strategy “reveals nothing about her own thoughts on the constitutional questions in the case,” and that people interested in her views on election law may have to wait until she is questioned before the Senate Judiciary Committee.

Susan Liss, the director of the Democracy Program at the Brennan Center for Justice, was more hopeful, according to Open Secrets blog of the Center for Responsive Politics. “I expect that she would continue her defense of the need for campaign finance regulation that she began [in the arguments during Citizens United],” Liss said.

“We should have hopes that progressives will be well-served by her nomination.” The Brennan Center is a partner of Justice at Stake, and video of an interview with Liss for New York’s ABC Eyewitness news is available here.

David Bossie of the nonprofit group Citizens United, which won the landmark decision from the Supreme Court, took a different tack. He said Obama ?has found a nominee whose views on the First Amendment are at worst disqualifying and at least should be questioned rigorously.?

A national poll in February found 80 percent of respondents disagreeing with the ruling.

When Justice at Stake submitted an amicus brief in Citizens United, it warned of potentially dire consequences for courts in states that elect judges. You can learn more about Citizens United from Gavel Grab, or more about the nominations process from  Justice at Stake?s ?Replacing Justice Stevens? page.

Full post as published by The Gavel on May 10, 2010 (boomark / email).