[Congressional Record Volume 156, Number 74 (Monday, May 17, 2010)]
[Senate]
[Pages S3794-S3795]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                       NOMINATION OF ELENA KAGAN

  Mr. McCONNELL. Mr. President, the American people are concerned with 
the direction the administration is trying to take this country. They 
are concerned about the government running banks, insurance companies, 
car companies, and the student loan business. And they are concerned 
about the way all this is being done as exemplified by the health care 
debate in which the administration and its allies in Congress defied 
the clear will of the people by jamming this partisan bill through 
Congress and stifling its critics along the way.
  On this last point, I am referring, of course, to the gag order the 
administration imposed on insurance companies that wrote letters to 
seniors telling them how the health care bill could affect their 
benefits under Medicare Advantage. In issuing this gag order, the 
administration relied on the flimsiest of legal arguments. It said that 
regulations which allowed the Department of Health and Human Services 
to restrict how companies marketed their products could be used to 
impose a prior restraint on speech about an issue of public concern--
namely, the pending health care bill. But the communications in 
question were not commercial speech; they were issue advocacy, which is 
the very type of speech the first amendment is intended to protect. 
That is why even the Clinton administration rejected the notion that 
its Department of Health and Human Services could restrict this kind of 
speech.
  Nor was this the only time the Obama administration has attempted to 
use the government to stifle speech. Just 1 month prior to its issuance 
of this gag order, I had the opportunity to sit in the Supreme Court 
when the Solicitor General delivered her first oral argument in any 
courtroom. This was the Citizens United case, the same case that 
prompted the President to scold the Court during his State of the Union 
Address in January and a case that, if it had gone the other way, could 
have dealt a serious blow to the first amendment right of free speech.
  For those who aren't familiar with the particulars of this case, 
Citizens United turned on the question of whether the Federal 
Government could ban a nonprofit corporation from producing a movie 
critical of former Senator Hillary Clinton and attempting to air it 
just prior to the 2008 Democratic primary.
  Most people would probably be surprised to learn that in America, the 
Federal Government could ban a group from speaking because of who the 
group was and because of the type of speech being uttered, but that is 
precisely what Federal campaign finance law prohibited. So because this 
law constrained the exercise of its first amendment rights, this 
nonprofit, Citizens United, sued the government. The case made it all 
the way to the Supreme Court, and because the Federal Government was 
the defendant, the Solicitor General's Office--Ms. Kagan's office--
handled the case, arguing in favor of prohibiting the advertising and 
airing of the film.
  There were two oral arguments in this case, and during both of them, 
Solicitor General Kagan's office and Ms. Kagan herself argued that the 
Federal

[[Page S3795]]

Government had the power to regulate--and, if need be, to ban--large 
amounts of political speech. Indeed, the amount of power Ms. Kagan and 
her office argued the Federal Government had in this area was so 
broad--so broad--that both liberal and conservative Justices found 
their arguments jarring, given the reverence Americans of all 
ideological stripes have for the first amendment. But that was, in 
fact, their argument.
  During the first argument, the Court asked Ms. Kagan's deputy whether 
the government had the power to ban books if they were published by a 
corporation, and if the books urged the reader to support or defeat a 
candidate for office. Incredibly, he said, yes, the government could 
ban a corporation from publishing a book--even if it only mentioned the 
candidate once in 500 pages.
  Not surprisingly, this contention prompted quite a bit of discussion 
among the Justices. They wanted to be clear that that is actually what 
Ms. Kagan's office was proposing. So, to remove any doubt about their 
position, Ms. Kagan's deputy said he wanted to make it, in his words, 
``absolutely clear'' that the government did, in fact, have the power 
to ban certain speakers from publishing books that criticized 
candidates. Justice Souter asked if that meant labor unions, too. Ms. 
Kagan's deputy said that indeed it did.
  Well, so troubled was the Court by the contention of the Solicitor 
General's office that the government had a constitutionally defensible 
ability to ban certain books by certain speakers, that it ordered 
another argument in the case. This time, Ms. Kagan herself appeared on 
behalf of the government. And this time, it was Justice Ginsburg who 
noted that at the first argument, Ms. Kagan's office argued that the 
Federal Government could, in fact, ban books, such as ``campaign 
biographies,'' despite the protections of the first amendment.
  Justice Ginsburg asked whether that was still the government's 
position. Ms. Kagan responded that after seeing the reaction of the 
Supreme Court to her office's argument, they had rethought their 
position. Ms. Kagan maintained that while the Federal law in question 
did apply to materials like ``full-length books,'' someone probably 
would have a good first amendment challenge to it.
  So far so good.
  But her fall-back position was that the same law gives the government 
the power to ban pamphlets, regardless of the first amendment's 
protection for free speech. This caused the Justices to bristle again. 
One Justice asked where, in Ms. Kagan's world, does one ``draw the 
line''?
  First, her office says it is OK for the government to ban books if it 
doesn't like the speaker; then it says it is OK to ban pamphlets if the 
government doesn't like the pamphleteer--a proposition that would come 
as a shock to the Founders, who disseminated quite a few pamphlets 
criticizing the government of their day.
  Not surprisingly, Ms. Kagan lost the case--and in my view, it is good 
that she did.
  Now, I asked Ms. Kagan about her position in this case last week when 
we met in my office. She said she made the arguments she did because 
she had to defend the statute. And I understand that her office has to 
defend Federal law. But the client doesn't choose the argument, the 
lawyer does. And the argument Ms. Kagan and her office chose was that 
the Federal Government has the power to ban books and pamphlets. That 
was the position of the Solicitor General and her office.
  Not only was this argument troubling to those who cherish free 
speech, it likely contributed to the government's defeat. But my 
concerns about Ms. Kagan's position in this case extend farther than 
the arguments she and her office made, however troubling they are.
  Shortly after she and I met, the press reported that she had 
cowritten a memo on campaign finance restrictions when she was in the 
Clinton administration. In it, she says that ``unfortunately'' the 
Constitution stands in the way of many restrictions on spending on 
political speech, and she believes that the Supreme Court's precedents 
establishing protections from the government in this area are 
``mistaken in many cases.''
  And just last Thursday, she told one of our colleagues that the Court 
was wrong in Citizens United because it should have deferred more to 
Congress. But deferred to Congress on what? Deferred to Congress on a 
statute that is so broad that it encompasses ``full length books'' and 
``pamphlets,'' as Ms. Kagan put it, and probably to a host of other 
materials as well? One can only assume that since Ms. Kagan was making 
these comments in her individual capacity, they provide a more complete 
picture of her views about the government's ability to restrict 
political speech.
  No politician likes to be criticized in books, pamphlets, movies, 
billboards, or anywhere else, Mr. President, whether it is a President 
or a Senator.
  But there is a far more important principle at stake here than the 
convenience and comfort of public officials. And that principle is 
this: in our country, the power of government is not so broad that it 
can ban books, pamphlets, and movies just because it doesn't like the 
speaker and doesn't like the speech. No government should have that 
much deference.
  The administration has nominated one of its own to a lifetime 
position on the country's highest court. We need to be convinced that 
Ms. Kagan is committed to the principle that the first amendment is 
not, as she put it, just some ``unfortunate,'' impediment to the 
government's power to regulate. It applies to groups for whom Ms. Kagan 
and the administration might not have empathy. And it applies to speech 
they might not like.
  So as this process continues, I look forward to learning more about 
Ms. Kagan's record and beliefs in area.
  I yield the floor.

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