Citizens United Instant Analysis: Kennedy Suspicious of General Kagan’s Arguments

January 21st, 2010

If you recall, at oral arguments, the government did not defend the anti-distortion rationales supporting Austin. The Court, at some length, addresses General Kagan’s arguments here:

As for Austin’s antidistortion rationale, the Government does little to defend it. See Tr. of Oral Arg. 45–48 (Sept. 9, 2009). And with good reason, for the rationale cannot support §441b.

The Government contends that Austin permits it to ban corporate expenditures for almost all forms of communication stemming from a corporation.See Part II–E, supra; Tr. of Oral Arg. 66 (Sept. 9, 2009); see also id., at 26–31 (Mar. 24, 2009). If Austin were correct, the Government could prohibit a corporation fromexpressing political views in media beyond those pre-sented here, such as by printing books. The Government responds “that the FEC has never applied this statute to abook,” and if it did, “there would be quite [a] good as-applied challenge.” Tr. of Oral Arg. 65 (Sept. 9, 2009). This troubling assertion of brooding governmental power cannot be reconciled with the confidence and stability incivic discourse that the First Amendment must secure.

In hindsight, was this a good strategic move on the part of General Kagan?