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How Elena Kagan lost a key campaign finance case

May 10, 2010 |  7:48 am

Solicitor General Elena Kagan by AP

In her debut as solicitor general for the Obama administration, Solicitor General Elena Kagan lost the first big case on the docket. On a 5-4 vote in January, the Supreme Court overturned 100 years of jurisprudence that had banned corporate and labor money from the political process, finding that the Federal Election Commission should not have stopped the airing of a privately funded campaign attack film "Hillary: The Movie."

President Obama was so upset by the ruling that he issued a written statement from the White House saying the high court had "given a green light to a new stampede of special interest money in our politics." Calling the decision a "major victory" for corporate America and defeat for Americans making small donations to politicians, Obama pledged to "work immediately" with Congress to develop a "forceful response." 

On Monday, he did even better, nominating Kagan to the Supreme Court. There are lots of reasons the nomination makes sense.

At 50, she is the youngest of the known candidates he interviewed, and he called her a "trail-blazing leader" who bridged political differences within the Harvard Law School faculty, where she served as the first female dean, and within the Clinton White House, where she worked in the counsel's office, helping steer Ruth Bader Ginsburg through her Supreme Court confirmation hearings. She would become the fourth female justice in the court's history, a plus for women's advocates, and she was confirmed to be solicitor general on a 61-31 vote, with the support of seven Republican senators.

So we thought it would be instructive to look back on that first case, to see how she lost it.

First, she asserted that the Supreme Court had never questioned the ban on corporate spending. Justice Antonin Scalia replied, "The court may never have questioned the ban, but it's never approved it either."

SCALIA: …"Congress has a self-interest. I doubt that one can expect a body of incumbents to draw election restrictions that do not favor incumbents. Now is that excessively cynical of me? I don't think so."

KAGAN: ..."I think Justice Scalia is wrong. In fact, corporate and union money go overwhelming to incumbents. This may be the single-most self-denying thing that Congress has ever done."

Chief Justice John G. Roberts Jr. challenged Kagan's argument that Congress was justified in banning corporate spending in elections because corporate money is other people's money. Her argument: It is the shareholders' money, and they have no say in how it's being spent in campaigns. Listen here:

ROBERTS: "The idea -- and as I understand, the rationale is we the government, Big Brother, has to protect shareholders from themselves. They might give money, they might buy shares in a corporation, and they don't know that the corporation is taking out radio ads."

KAGAN: "In a world in which most people own stock through mutual funds, in a world in which most people own stock through retirement plans in which they have to invest, they have no choice, I think it's very difficult for individual shareholders to be able to monitor what each company they own assets in is doing, or even to know."

Recognizing that the case may get some attention in the next few months, Obama praised Kagan during his announcement for taking the case as her first before the court, citing it as an example of her commitment to protecting rights.

-- Johanna Neuman

Photo: Elena Kagan. Credit: Associated Press

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