The jurors in the federal prosecution of former Illinois governor Rod Blagojevich were only able to render a conviction on one count - lying to the FBI. The jury could not reach a unanimous verdict on the slew of other more serious charges, including the one that he attempted to sell the Senate seat vacated when Barack Obama was elected president. In an op-ed for The New York Times, best-selling author and attorney Scott Turow says the jury's action can be traced to the Supreme Court's recent rulings on regulations of corporate campaign financing.

Turow writes:

I suspect the jury's indecision might have been a reaction at some level to the hypocritical mess our campaign financing system has become, especially in light of recent Supreme Court jurisprudence about political donations.

Turow notes that in a 5-4 decision last summer, the high court said a West Virginia Supreme Court judge should have recused himself in a case involving Don Blankenship, head of the Massey Coal company, because of Blankenship's enormous amounts of campaign contributions to the judge. But Turow continues, the high court "pointedly refused to require the same of other judges who received less grandiose campaign assistance from lawyers and litigants with cases before them."

Then the Supreme Court, earlier this year, issued its headline-grabbing decision in Citizens United v. FEC, which concluded that corporations can spend freely on campaigns.

Turow notes:

Indeed, in Citizens United v. Federal Election Commission, the court decided that such organizations could spend as much as they wished at any time, assuming there was no direct coordination with the candidate. In doing so, the court overturned its own precedents and refused to distinguish the free speech rights of corporations and unions in any way from those of actual people.

The problem with this logic is that corporations have a legal duty not to spend money unless it is likely to improve profits. Unions, too, are expected to make only contributions that will benefit members. As a result, no idealistic patina of concern about good government or values-driven issues can burnish these payments.

...

In any case, the bevy of ways in which donors can get around current spending laws, combined with the Supreme Court's elastic approach to the First Amendment, have left our campaign finance system as little more than a form of legalized influence-buying.

Turow suggests a constitutional amendment may be needed to reverse "the notion that unrestricted political spending deserves protection as free speech. Without that, who could fault a juror for looking around at contemporary political life and feeling that Rod Blagojevich had been unfairly singled out?"

 

By Paul S. Ryan, FEC Program Director and Associate Legal Counsel at The Campaign Legal Center.

In the months since the landmark decision Citizens United v. Federal Election Commission, authorizing corporations to make unlimited independent political expenditures in candidate elections, groups including the Republican-leaning Club for Growth and the Democratic-leaning Commonsense Ten have asked the FEC to go well beyond the Court's decision. They have asked the FEC, through Advisory Opinion Requests (AORs), to extend Citizens United to further deregulate corporate money in politics by ignoring statutes and regulations restricting how corporate political committees (PACs) raise money and limiting contributions from corporations to PACs - statutes and regulations not yet viewed or evaluated by any court.

These recent Club for Growth and Commonsense Ten AORs raise important questions of both substance and process. When and how is it appropriate for an administrative agency to decide not to enforce statutes and regulations that have not been invalidated by any court?

Prior to the Citizens United decision, corporations like Goldman Sachs were prohibited by federal laws from (1) making political expenditures using their general treasury funds and (2) making political contributions to federal candidates and PACs. The Citizens United Court ruled that corporations like Goldman Sachs have a constitutional right to make unlimited independent expenditures, but the corporate contribution ban was not challenged, considered or invalidated in Citizens United.

The Supreme Court in Citizens United concluded that, unlike "direct contributions," which may give rise to corruption, "independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption," and held that the federal law prohibiting a corporation from making independent political expenditures using general treasury funds violates the corporation's right to free speech under the First Amendment.

A couple of months after the Supreme Court decided Citizens United, the en banc D.C. Circuit Court of Appeals decided SpeechNow.org v. FEC. The court struck down, on First Amendment grounds, the federal $5,000 limit on contributions from individuals to SpeechNow.org, which promised to limit its political activity to making independent expenditures (i.e., no contributions to candidates). In reaching its conclusion, the D.C. Circuit extended the reasoning of Citizens United from expenditures to contributions. The D.C. Circuit reasoned: "In light of the Court's holding as a matter of law that independent expenditures do not corrupt or create the appearance of quid pro quo corruption, contributions to groups that make only independent expenditures also cannot corrupt or create the appearance of corruption."

Neither Citizens United nor SpeechNow challenged the constitutionality of the federal ban on corporate contributions to candidates and political committees - a ban that has been on the books since 1907. Consequently, neither the Supreme Court in Citizens United nor the D.C. Circuit in SpeechNow considered the constitutionality of the long-standing ban on corporate contributions.

This fact, however, did not stop Club for Growth and Commonsense Ten from approaching the FEC to request further deregulation of corporate money in federal elections.

Club for Growth argued in its Advisory Opinion Request that, under the rationales of Citizens United and SpeechNow, it should be permitted to set up a corporate PAC to make independent expenditures using the corporate parent's treasury funds to pay the PAC's overhead expenses, but to do so free from existing statutory and regulatory restrictions on corporate PAC solicitations (e.g., requirement that corporate PAC only solicit its "restricted class" of executive employees and shareholders).

Commonsense Ten took things one step further. Commonsense Ten established itself as a federal PAC to make independent expenditures and argued in its Advisory Opinion Request that, under the rationales of Citizens United and SpeechNow, it should be permitted to accept unlimited corporate and labor union contributions - despite the statutory ban on corporate and union contributions to federal PACs, which has not been invalidated by any court. Commonsense Ten argued that because Citizens United establishes the right of corporations to make unlimited independent expenditures, and because SpeechNow establishes the right of independent expenditure PACs to accept unlimited individual contributions, the two should be understood together as establishing the right of independent expenditure PACs to accept unlimited corporate contributions.

The FEC voted 5-1 to approve both deregulatory advisory opinions, with Commissioner Walther dissenting in both opinions. Commissioner Walther seemingly disagreed primarily with how the Commission reached these results expanding the holdings of Citizens United and SpeechNow. Commissioner Walther suggested the FEC should have given the matters more thorough consideration through a formal rulemaking proceeding, with opportunity for more extensive public input through submission of written comments and in-person testimony at a public hearing, rather than using the more abbreviated advisory opinion process to decide the matters,

Commissioner Walther's concerns are understandable. Regardless of whether multiple court decisions can be read together to establish a certain proposition, it is dangerous precedent for an administrative agency to sua sponte cease enforcement of a federal statute that has not been invalidated by any court and to do so through the advisory opinion process. After all, advisory opinions are for the purpose of addressing questions "concerning the application of the [Federal Election Campaign] Act," 11 C.F.R. § 112.1(a), not for declaring key portions of the Act unconstitutional.

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By Jeffrey D. Clements. Mr. Clements is former Chief of the Public Protection and Advocacy Bureau in the Massachusetts Attorney General's Office, and now focuses on litigation and appeals with Clements Law Office, LLC. Mr. Clements filed an amicus brief in the Citizens United v. FEC case on behalf of several democracy advocacy organizations, and serves as general counsel of Free Speech for People. Mr. Clements is also author of the ACS Issue Brief, "Beyond Citizens United v. FEC: Re-Examining Corporate Rights."

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A few days ago, Senate Republicans united to defeat the Disclose Act, critical legislation intended to respond to the Supreme Court's invalidation in Citizens United v. FEC of the ban on the use of corporate general treasury funds to make independent political expenditures. The House passed the Act in June. But despite the wishes of large majorities of the American people and of 58 of 100 Senators, the legislation could not get past a Republican filibuster.

Following the modern and somewhat insulting acronym trend, the formal name of the legislation is the "Democracy Is Strengthened By Casting Light on Spending in Elections Act". The Senate version of the Disclose Act would amend the Federal Election Campaign Act of 1971 to restrict political contributions, independent expenditures and electioneering communications by government contractors, recipients of TARP bail-out money, holders of federal off-shore drilling leases, and foreign national corporations. The Act would apply to "corporations and other organizations" and requires reporting and disclosure of the identity of donors to an independent expenditure campaign, disclosure of political spending to shareholders and members, and certification and "stand-by-your-ad" statements by responsible officers of the corporation ("I am XXX and I approve this message.")

In January, President Obama rightly called the Citizens United decision a "strike at democracy itself." Most Americans agree. According to a recent comprehensive poll about Citizens United, 82% of respondents worried that Congress "will not go far enough to keep corporations from having too much influence," and 77% believe that Congress should promote a Constitutional amendment to address the problem.

Yet, in a measure of how damaged our democracy has become due to special corporate interest money, a minority of Senators representing a fraction of the American people killed even the modest response of requiring reporting and disclosure of corporate political spending, and restricting such spending by certain foreign corporations and government contractors.

In doing so, the surreal and undemocratic world of Washington circa 2010 was on full display:

First, preference for action by a wide majority of the American people and even a wide majority of the US Senate doesn't matter. The bizarre filibuster rule, appearing nowhere in the Constitution, again allowed legislation to "fail" despite the support of 58 Senators representing 3/4 of the States and of the American people. Once again, regardless of the wishes of the other 306 million Americans, those fighting for necessary reform were reduced to begging unsuccessfully for the support of Senators Collins and Snowe, representing the 1.3 million good people of Maine.

In a recent speech entitled "Tyranny of the Minority" at the Brennan Center for Justice at New York University School of Law, Senator Tom Harkin described just how abusive the filibuster has become in this Congress:

For the entire nineteenth century, there were only 23 filibusters. From 1917 - when the Senate first adopted cloture rules for ending debate - until 1969, there were fewer than 50 . . . In contrast, during the last Congress, 2007-2008, the majority was obliged to file a record 139 motions to end filibusters. Already in this Congress, since January 2009, there have been 98 motions to end filibusters.

... According to one study, in the 1960s, just eight percent of major bills were filibustered. Last Congress, 70 percent of major bills were targeted.

Second, in the defeat of the Disclose Act, as with efforts to defeat global warming legislation, health care reform, judicial nominations, financial reform, and so much else, facts no longer matter in the Senate. Knowing that going to bat for foreign corporations and corporate welfare recipients would not be very popular, the Republicans instead rallied around a tried and true tactic: union bashing. According to her press secretary, Senator Susan Collins opposed the Act because it "would provide a clear and unfair advantage to unions, while either shutting other organizations out of the election process or subjecting them to onerous reporting requirements that would not apply to unions." Senator Scott Brown complained that unions "would be carved out of this legislation and not face the same regulations that would apply to everyone else."

As with the "death panel" canard used to attack health care reform, the "union carve-out" charge is false. The bill in the Senate applies to "covered organizations," defined specifically as corporations and "any labor organization." In fact, the AFL-CIO opposed the Disclose Act.

In leading the charge to defeat the Disclose Act, Senate Minority Leader Mitch McConnell from Kentucky accused his 58 Senate colleagues and the President of the United States of pretending to care about democracy while actually trying to "rig the fall elections." This is what now passes for leadership.

And look at what's going on in Senator McConnell's home state of Kentucky after Citizens United. John Cheves, of the Lexington Herald Leader, recently uncovered a letter from the Roger Nicholson, general counsel of the International Coal Group, calling on at least four coal corporations, including Massey Energy, to pool corporate money in "a 527 entity with the purpose of attempting to defeat anti-coal incumbents in select races, as well as elect pro-coal candidates running for certain open seats." Mr. Nicholson picks up on Justice Kennedy's moving point in Citizens United that corporations, like any other "disadvantaged person and class," must use their "voices:" "With the recent Supreme Court ruling, we are in a position to be able to take corporate positions that were not previously available in allowing our voices to be heard."

Despite the farce that defeated the Disclose Act in the Senate, there is growing recognition in Washington and beyond that Citizens United and the magnitude of challenges to our democracy call for much more than legislative gamesmanship. Thus it is hopeful to see Senator Max Baucus responding to the defeat of the Disclose Act with his introduction of a Constitutional amendment. "We have got to make sure elections remain in the hands of the people, it's as simple as that," Baucus said. "We Montanans learned our lesson almost a century ago when the copper kings leveraged their corporate power to effectively buy elections. As a result, we have some of the toughest campaign finance laws in the land -- and they work." He joins several other Senators and Representatives and millions of Americans in recognizing that it is time once again for the American people to turn to Article V's basic tool of citizenship to decide for ourselves what kind of democracy we will have in America.

America needs the Disclose Act. Much more, though, we need to amend the Constitution to restore government of the people.

 

During yesterday's ACS Supreme Court term review, video of which is available here, a range of cases were highlighted and debated. But the Court's decision (pdf) in Citizens United v. FEC, as The New York Times tagged it, was the term's centerpiece. The opinion in Citizens United, as noted by some Court watchers shows the Robert Court's as one affinity for business interests. At the 2010 ACS National Convention following a panel discussion on the ruling, the Brennan Center's Monica Youn talked with ACSblog about its potential impact.

Youn said the decision essentially runs roughshod over shareholders by allowing vast amounts of corporate treasury to be funneled into electioneering without their knowledge or consent. Youn, however, highlighted several measures pending in Congress that could help shareholders have more knowledge about how their companies are expending profits. Youn's interview is below or it can be downloaded as a podcast here.

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By Ellen Zeng, author of a recent article in the Harvard Law & Policy Review

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Campaign consultants perform a Jekyll and Hyde role in electoral politics. On one hand, they make critical decisions that lead to Election Day victories, such as crafting the candidate-defining phrase describing President George W. Bush as the "compassionate conservative." On the other hand, they use tactics that ultimately harm democracy, such as strategically arranging for voters to receive phone calls right before the election asking if they would "be more or less likely to vote for [Candidate X] if [they] knew her staff is dominated by lesbians?" Neither the glorifying view that campaign consultants are indispensable nor the vilifying view that they harm democracy can actually be arrived at without first analyzing how campaign consultants impact electoral politics and our democracy.

 

Are Campaign Consultants Valuable? starts by describing the impact campaign consultants as a group have on the electoral process and our democracy. Then the article evaluates whether campaign consultants are a valuable part of both the electoral process and our representative democracy, and through this evaluation exposes a difficulty: how to measure consultants' positive impact on election results against their negative impact on democracy. This difficulty of comparing an ability to win races with damage to democracy suggests asking whether is it possible for consultants simultaneously to benefit democracy and ensure their candidate's victory.

Ultimately this article concludes that maintaining effectiveness in order to ensure a candidate's victory cannot concurrently guarantee democracy's betterment. The inability of consultants to prioritize both the client and democracy reveals a need to address a logically prior question of values: should campaign consultants only be responsible for getting their clients elected or should they also have an obligation to improve our democracy?

Given the ubiquity of consultants, understanding their impact on democracy is important. A better understanding of their role provides guidance for reforming the campaign consulting industry in order to increase its value both to the electoral process and to our democracy.

 

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By Mimi Marziani, Counsel/Katz Fellow, Democracy Program, Brennan Center for Justice

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On Tuesday, the Supreme Court issued an order that can only be described as irresponsible. About two months from the primary election and five months from the general, the Court blocked the state of Arizona from providing its publicly-funded candidates with so-called trigger funds - additional public grants triggered by the high spending of nonparticipating opponents or hostile third parties. The Court, ruling on an emergency motion, offered no explanation with its three-sentence order. And, the Court breaks for the summer in two weeks, so there is virtually no chance that this case will be decided on its merits until fall. By that time, of course, it will be too late for many of Arizona's candidates, who - in some cases - will have to wage hyper-competitive electoral contests on one-third of the funding they originally anticipated.

In the aftermath, some are proclaiming the end of public funding programs writ large. The New York Times, for example, has sounded a death knell, predicting that "state finance programs [will] be the [C]ourt's next conquest." This story of demise is, however, greatly exaggerated.

Clearly, there is good reason to condemn the Court's actions. But to decry the death of public financing is simply alarmist - and inaccurate. In fact, public funding of elections remains the constitutionally optimal way to curb political corruption. As the Supreme Court explained long ago in its famous Buckley v. Valeo decision, providing public money to finance campaigns "facilitate[s] and enlarge[s] public discussion and participation" and thus "furthers, not abridges, pertinent First Amendment values."

The Court's recent order has no bearing on these general principles. The Arizona case centers on one aspect of the state's public funding system - the trigger funds. Challengers argue that the prospect of triggering additional monies for their political foes chills them from speaking. A unanimous Ninth Circuit refused to buy this novel claim of First Amendment injury, reaffirming that "the First Amendment includes no right to speak free from response." The Court of Appeals also found that there is no evidence of chill, i.e., no sign that the plaintiffs would spend right up to the triggering threshold but no more. In this context, it was - to say the least - a surprising act of judicial activism for the Court to suddenly throw a wrench into Arizona's decade-old public funding program. Now, we simply have to wait and see how the Supreme Court ultimately rules.

In the meanwhile, we can rest assured that the numerous public financing systems without trigger provisions sit on firm legal ground. For example, the Fair Elections Now Act ("Fair Elections") - legislation that would provide congressional candidates with public funding - is certainly constitutionally sound. Under Fair Elections, qualified candidates would receive an initial lump-sum grant, plus a four-to-one match of individual contributions up to $100. This scheme rewards a participating candidate for fundraising from a broad base of small donors while avoiding the legal questions raised when additional grants are triggered by nonparticipants' spending.

Whatever the case's final outcome, the Court's hasty action demonstrated its willingness to embrace a First Amendment "right" of high-spending interests to pour money into campaigns. Robust public financing systems, such as Fair Elections, are needed to ensure that the voices of ordinary citizens are not rendered irrelevant. Now, more than ever, we must embrace public funding as the "more speech" solution to the problems wrought by big money in politics.

[image via political-reform.net]

Editor's Note: The Supreme Court issued an order in McComish v. Brewer yesterday blocking public financing for Arizona candidates. In what Adam Liptak of The New York Times described as "a terse unsigned order without dissents" the justices put in place a trial court injunction barring public funds from being distributed to candidates. "The Supreme Court's stay will probably remain in effect through the state's primary elections in August and the general election in November," Liptak writes.

Arizona officials urged the Supreme Court not to block its decade-old program of public campaign financing. In analysis for SCOTUSblog, Lyle Denniston writes that lawyers for the state argued that "publicly subsidized state political candidates in Arizona could be silenced if their access to official funds is cut off now ...." Recently the U.S. Court of Appeals for the Ninth Circuit upheld in McComish v. Brewer Arizona's public funding program, but opponents of the program have asked the high court to stay the release of the funds while it lodges an appeal. Denniston writes that the high court is "expected to make up its mind shortly on whether to step in at this point. Presumably, it will await a reply from the subsidy opponents before acting."

In an Issue Brief released late last week by ACS, the Brennan Center's Monica Youn notes that public financing systems like Arizona's is one way to counter the enormous flow of corporate dollars into elections following the Supreme Court's recent ruling in Citizens United v. FEC. Youn writes, "Public funding programs also have the potential to promote meaningful electoral participation by a diverse range of citizens." Youn, counsel in the Center's Democracy Program, however, also notes that the public financing systems have come under increasing attacks from some of the same individuals and groups who lodged the Citizens United lawsuit, which led to the high court's decision that corporations have a First Amendment right to spend freely in elections. Youn's Issue Brief is available here.

 

Like the millions of gallons of oil that have spewed into the Gulf of Mexico, a torrent of corporate dollars is likely to be unleashed into the nation's political system at a pace and size unseen before, because of the Supreme Court's recent opinion in Citizens United v. FEC, according to an Issue Brief released by ACS.

In "Citizens United: The Aftermath," Monica Youn of the Brennan Center for Justice at New York University Law School studies public reaction to the ruling, how it is likely to shape forthcoming elections, and offers solutions on how to cap the rush of corporate dollars into the nation's electoral politics.

The decision, Youn writes, "will affect every election for years to come. The 5-4 decision undermined 100 years of law that restrained the role of special interests in elections. By holding for the first time, that corporations have the same First Amendment rights to engage in political spending as people, the Supreme Court re-ordered the priorities in our democracy - placing special interest dollars at the center of our democracy, and displacing the rightful role of voters."

Before Citizens United, corporations were constrained in their ability to engage in electioneering. Corporations, Youn notes, had to create PAC funds, "amassed through voluntary contributions from individual employees and shareholders who wished to support the corporations' political agenda. Such funds were subject to federal contribution limits and other regulations. Now however, the Citizens United decision will allow corporations that wish to directly influence the outcome of federal elections to draw from their general treasury funds, rather than PAC funds, to support or oppose a particular candidate."

The narrow decision in Citizens United did leave a "door open for Congress to craft regulation over corporate expenditures, as long as the regulation is based on a strong factual showing on the relationship between such expenditures and corruption."

There may be room for tougher laws requiring corporations to disclose to share holders how expenditures are being used on political activity and in a Brennan Center report, new regulation should be sought that would require "corporate managers to obtain authorization from shareholders before making political expenditures with corporate treasury funds ...." The report also suggests regulation to require "corporate managers to report corporate political spending directly to shareholders."

But the individuals and who have worked for years to weaken regulations of corporate campaign spending are also striving to shred the disclosure regulations that are still intact. Youn notes that there is a "wave of legal challenges aimed at eliminating the (already weak) disclosure requirements for independent expenditures."

Another way to stem the flow of corporate dollars into elections is to bolster public financing programs, Youn writes. "Systems that award multiple matching funds for small contributions, like that proposed in the Fair Elections Act, introduced by Illinois Senator Richard Durbin and Connecticut Representative John Larson, as well as the public financing system in New York City, amplify the voices of actual citizens, and can be an effective counterbalance to unrestrained corporate spending."

But like the challenges to disclosure regulations, Youn notes "a new slew of challenges" to public financing systems. For example, the U.S. Court of Appeals recently upheld Arizona's public financing system against a legal challenge, "but the plaintiffs in the suit have already filed an emergency motion to stay the functioning of the decade-old program pending appeal to the Supreme Court. A similar lawsuit challenging Connecticut's public funding programs is pending before the Second Circuit, and two new regulations were recently launched in Wisconsin, again by the same opponents of reform who brought the Citizens United lawsuit."

See Youn's entire Issue Brief here.

There's an odd - and therefore probably not surprising - proclivity among some Tea Party members to bemoan the Constitution's 17th Amendment, and call for its repeal.

David Firestone, in an op-ed for The New York Times, notes for us that the 17th Amendment was added to the Constitution in 1913 and provided "for the direct popular election" of U.S. senators. Before the amendment was adopted, state legislatures, "filled with men of property and stature," chose senators, Firestone writes.

Beyond some Tea Partiers, is there a groundswell of support for dumping the 17th Amendment and allowing state legislatures to select senators?

As Firestone notes, "A modern appreciation of democracy - not to mention a clear-eyed appraisal of today's dysfunctional state legislatures - should make the idea unthinkable. But many Tea Party members and their political candidates are thinking it anyway, convinced that returning to the pre-17th Amendment system would reduce the power of the federal government and enhance state rights."

Firestone concludes:

It may be true that appointed senators, accountable only to state legislators, would never approve of many useful federal mandates designed to put the national interest above local parochialism - including everything from the minimum wage to the new health care reform law.

Not enough Americans vote. But, fortunately, almost all like the idea that they can, a thoroughly modern sentiment that will confine this elitist notion to the fringes. That means Tea Partiers who are infuriated by the health care law and everything else now going on in Washington can no longer look to James Madison for a bailout. Their best remedy is the one they seem to spurn: a vote at the ballot box.

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By Rick Hasen, William H. Hannon Distinguished Professor of Law, Loyola Law School - Los Angeles & Publisher, Election Law Blog

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Last night, as word leaked out that the President was set to nominate Solicitor General Elena Kagan to the Supreme Court, I put up a post on my Election Law Blog noting that we know virtually nothing about SG Kagan's views on election law issues such as campaign financing, voting rights, redistricting issues, voter identification, and other important issues. I said, however, that just because the SG is likely to be generally liberal on issues related to election law (given that she was nominated by a Democratic president and served in two Democratic administrations), that did not necessarily translate into support for reasonable campaign finance regulation, such as the limits on corporate campaign spending in candidate elections, which the Supreme Court struck down in the recent Citizens United case.

I pointed to Dean Kathleen Sullivan as an example of a leading liberal constitutional law scholar who has written extensively against the constitutionality of campaign finance limits. (To that list, I might add my friend Bob Bauer, who is a staunch Democrat-and current White House counsel charged with shepherding the Kagan nomination through the Senate. He is a longstanding opponent of many campaign finance regulations.)

When I wrote those words last night, I did not know that SG Kagan had written about six pages on the constitutionality of corporate spending limits in candidate campaigns in a law review article, Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine, 63 U. Chi. L. Rev. 413, 464-472 (1996). Marvin Ammori, writing on Balkinization, read those pages and concluded (with some caveats, such as that a person's views may change after 14 years) that SG Kagan is likely a "defender of corporate speech rights" and therefore a likely vote with the majority in Citizens United. (Justice Stevens wrote the dissent in that case for the four dissenters.)

Having reviewed those pages, I am not convinced that we really know anything more about how SG Kagan would have voted in Citizens United or, more importantly, how she will vote as related issues come before the Court. Here are my reasons.

1. SG Kagan expresses concern in the law review article about the fact that campaign finance laws that say they are aiming at equalization might instead by incumbency protection measures, and for this reason, they need to be subject to strict scrutiny. That's a position that is very close to the position Justice Breyer stated in his Shrink Missouri dissent and in his book, Active Liberty. Yet Justice Breyer voted to dissent in Citizens United. He applies strict scrutiny, but sometimes comes out in favor of regulation. Similarly, just because SG Kagan believes these laws are subject to a careful look does not mean they are necessarily unconstitutional.

2. SG Kagan goes out of her way to see the equality rationale and the First Amendment as not incompatible in theory, so long as the incumbency problem/bad motive problem could be solved. (I'm much less enamored of intent tests to figure out the constitutionality of election laws, but that's an issue for another day.) This suggests, for example, that a corporate spending limit passed by voter initiative could be constitutional.

3. Even aside from the equality rationale, which SG Kagan abandoned during the briefing and argument in Citizens United, there are other rationales for upholding a corporate spending limit in candidate elections, including shareholder protection (which the SG pushed hard at the Citizens United oral argument) and prevention of quid pro quo corruption (something I'm writing about more extensively). So even if SG Kagan does not believe equality can be considered a compelling interest to justify regulation (something I don't think she actually says on those pages of her law review article), there could well be other compelling interests to justify the limits.

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So what do we really know about how SG Kagan would have voted in Citizens United? I'll stick with what I wrote last night: virtually nothing. I hope we will learn more at the hearings, though I think some ambiguity from the SG on the question could actually gain her some Republican votes and work toward the Obama Administration's goals of marketing the Kagan nomination as a centrist nomination.

[Image via Office of the Solicitor General.]