McConnell’s ‘Big Lie’ about Kagan

A common tactic in Washington’s partisan warfare is to use the “Big
Lie”: say something inaccurate and repeat it often enough so people
assume the politician wouldn’t have the gall to repeat it if it wasn’t
true.

Unfortunately, Senate Minority Leader Mitch McConnell (R-Ky.) has plenty of gall and has pushed this strategy, attempting to derail Elena Kagan’s nomination to the Supreme Court.

{mosads}Earlier this year, the Supreme Court threw out 100 years of law by permitting corporations and unions to use treasury funds to influence federal elections. Sen. McConnell strongly applauded the Citizens United v FEC decision, and now is using the Big Lie strategy to raise misleading questions about Kagan’s suitability for the court.

It is tempting to simply roll one’s eyes and ignore the offal at the heart of these attacks.  But there is too much at stake, and the effectiveness of the “Big Lie” strategy shouldn’t get any traction.

First, Sen. McConnell is using Solicitor General Kagan’s defense of the federal ban on corporate treasury funds against her. Yet, as solicitor general, Kagan’s duty was to defend challenged federal statutes – the same job former Solicitor General Ted Olson had when he defended the same law earlier this decade.

Second, McConnell’s charge that Kagan favors banning books is wrong and pure fear mongering. In fact, Kagan changed the government’s position between the original argument made by a deputy solicitor general and the second supplementary argument when Kagan argued.

Let’s set the record straight. First, during oral argument, Kagan highlighted that the FEC had never in its history applied the corporate restrictions to a book, and thus, the entire issue was quite literally a hypothetical. Nevertheless, Chief Justice John Roberts pressed forward with questions about the hypothetical book, saying, “You have a history of union organizing and union involvement in politics, and the last sentence says in light of all this, vote for Jones.” Would that be covered, he asked.

In response, Kagan stated, “I think that that wouldn’t be covered Mr. Chief Justice. The FEC is very careful and says this in all its regulations to view matters as a whole. And as a whole, that book would not count as express advocacy.”

Kagan correctly acknowledged in her argument that the statutory ban on corporate and union express advocacy applied to books, generally, but its application to a book could be taken to court in an “as applied-challenge.” Referring to the question raised at the first Citizens United argument about books, Kagan said: “…the government’s view is that, although 441b does cover full-length books, there would be [a] quite good as applied challenge to any attempt to apply 441b in that context.”

In other words, Kagan argued that even if federal corporate restrictions were, for the first time in 60 years, interpreted to regulate books, the law would not likely withstand legal challenge as applied. Thus, Kagan made the opposite argument from that attributed to her by McConnell. Far from supporting “book-banning,” she stated that restricting books would probably be unconstitutional.

The real controversy is not Kagan’s actions or positions during arguments in the Citizens United case, but the outcome of the case itself. The court engaged in unprecedented judicial activism. The court also failed to properly defer to Congress in spite of previous decisions, saying that even greater deference should be paid to Congress when regarding federal campaign finance laws.

Kagan is right to be concerned about unlimited amounts of corporate and union treasury funds being spent to buy access and influence in Washington. Because of the Supreme Court’s decision, corporations – even those controlled by foreign interests – will be able to run millions of dollars worth of campaign ads without even necessarily telling anyone who is paying for them. Polls show the American people share Kagan’s concerns and disapprove of the court’s Citizens United decision.

As Justice Stevens noted in dissent, “The Court’s ruling threatens to undermine the integrity of elected institutions across the Nation.  … At bottom, the Court’s opinion is  … a rejection of the common sense of the American people, who have recognized a need to prevent corporations from undermining self-government since the founding, and who have fought against the distinctive corrupting potential of corporate electioneering since the days of Theodore Roosevelt.”

A bipartisan bill now working through Congress recognizes that Americans have a right to know who is spending money to influence our elections and prohibits foreign-controlled corporations from spending unlimited sums to influence American elections.

So, the difference between Sen. McConnell and Solicitor General Kagan boils down to this: McConnell welcomes a political system dominated by corporate wealth. Kagan fulfilled her oath of office by supporting laws that protect the ability of individuals to be heard.

McConnell’s Big Lie about Kagan is just that, and it should be rejected.

J. Gerald Hebert is executive director and Meredith McGehee is policy director of the Campaign Legal Center.