The Kagan Principle by James Taranto

The Kagan Principle

The more stubbornly corrupt the government is, the more justified it is in curtailing fundamental liberties.
By JAMES TARANTO, Wall Street Journal
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We've been thinking a lot about Justice Elena Kagan this week. Normally we'd file such a revelation under "The Lonely Lives of Columnists," but our musings are about weighty matters of constitutional law--specifically, Kagan's dissent in Arizona Free Enterprise Club's Freedom PAC v. Bennett, the final case the Supreme Court decided this term.

As we noted Tuesday, the 5-4 decision struck down an Arizona law that penalized political speech by subsidizing opposing speech: If, say, you gave $100 of your own money to a Democratic candidate for state Senate, Arizona would take $100 from the taxpayers and give it to the Republican candidate. The provision applied to "independent" expenditures too, so that if you gave $100 to an advocacy group campaigning on behalf of the Democrat, the Republican's campaign would get $100 in tax money to spend as it saw fit--even though the Democratic candidate, by law, was forbidden to influence the advocacy group's efforts.

In her dissent, joined by three other justices, Kagan explained her objection through a roundabout hypothetical:

Imagine two States, each plagued by a corrupt political system. In both States, candidates for public office accept large campaign contributions in exchange for the promise that, after assuming office, they will rank the donors' interests ahead of all others. As a result of these bargains, politicians ignore the public interest, sound public policy languishes, and the citizens lose confidence in their government.

Recognizing the cancerous effect of this corruption, voters of the first State, acting through referendum, enact several campaign finance measures previously approved by this Court. They cap campaign contributions; require disclosure of substantial donations; and create an optional public financing program that gives candidates a fixed public subsidy if they refrain from private fundraising. But these measures do not work. Individuals who "bundle" campaign contributions become indispensable to candidates in need of money. Simple disclosure fails to prevent shady dealing. And candidates choose not to participate in the public financing system because the sums provided do not make them competitive with their privately financed opponents. So the State remains afflicted with corruption.

Voters of the second State, having witnessed this failure, take an ever-so-slightly different tack to cleaning up their political system. . . . The second State rids itself of corruption.

"The second State," of course, is Arizona--although by framing the narrative as a hypothetical, Kagan is able to imagine, rather than having to establish, that through such measures it "rids itself of corruption."

On Tuesday we noted a provocative argument put forth by Sean Parnell of the Center for Competitive Politics, a pro-free-speech group. In hypothesizing that the restrictions the court has upheld are insufficient to rid a state of corruption, Parnell argues, Kagan is all but admitting that is the case. Since the court has accepted those curtailments of free speech on the ground that they serve the "compelling interest" of preventing corruption, Kagan's dissent implies that they are unconstitutional as well.

Thinking about it more deeply, though, we came up with a counterargument in Kagan's defense. Corruption is a matter of degree. Contrary to the language of Kagan's opinion, a state is not simply "afflicted with" or "rid . . . of" corruption. It's possible the sort of speech restrictions the court currently upholds reduce corruption enough to be justified, even if they fall short of eliminating it altogether. Kagan argues that the same was true of Arizona's now-voided law.

She does not claim that Arizona actually succeeded in ridding itself of corruption, and it seems highly unlikely that it did. Thus if Kagan's view had prevailed, other states likely would have adopted even greater burdens on political speech, of which Kagan and her like-minded colleagues would have approved on similar grounds.

James Taranto on the Kagan Principle.

"The difficulty," Kagan writes, "is in finding the Goldilocks solution--not too large, not too small, but just right." Finding such solutions is the job of lawmakers, not judges: "Arizonans deserve the chance to reform their electoral system." To sloganeer E.J. Dionne, that is an expression of judicial restraint. "Remember how sympathetic conservatives are supposed to be to the states as 'laboratories of democracy,' pioneering solutions to hard problems?" he grouses. "Tell that to the people of Arizona."

But there's a world of difference between judicial restraint and judicial dereliction of duty. James Madison was not Goldilocks, and the First Amendment says, "Congress shall make no law." (That applies to the states as well, thanks to the doctrine of incorporation.) The court is obliged to strike down laws violating freedom of speech even if they were enacted with the best of intentions.

There's something else amiss with Kagan's reasoning. To illustrate, let's alter her hypothetical slightly.

In the Taranto hypothetical, as in the Kagan one, the first state enacts contribution limits, mandatory disclosure and public financing, and is still afflicted with corruption. The second state enacts the Arizona plan, which is upheld in a 5-4 decision written by Justice Kagan.The second state, however, also remains afflicted with corruption, so a third, fourth and fifth state each enact progressively more draconian restrictions on political speech.

Presumably at some point this progression would come to an end. Either some state's restrictions would prove too burdensome for the court to uphold, or--far less likely--a state would actually succeed in ridding itself of corruption. Until one or the other ultimate outcome, however, the court's jurisprudence would be governed by what we hereby deem the Kagan Principle: The more stubbornly corrupt the government is, the more justified it is in curtailing fundamental liberties.

In real life, and notwithstanding Kagan's objection, the court reached its endpoint this week when it struck down the Arizona scheme. But Justice Sandra Day O'Connor tells The New Republic that she would have voted to uphold it. Since her successor, Justice Samuel Alito, was with the majority, that would have changed the outcome.

And while Kagan's dissent refers repeatedly to "corruption and the appearance of corruption," O'Connor places special emphasis on the latter: "As a former state legislator," writes TNR's Jeffrey Rosen, "O'Connor . . . understands that public confidence in judges and legislators can be undermined just as much by the appearance of possible corruption--or the impression that money is buying access or votes--than by quid pro quo examples of vote-buying."

Hence the O'Connor Corollary to the Kagan Principle: Merely by appearing to be corrupt, the government can justify its curtailment of fundamental liberties.

The idea of rewarding corrupt (or corrupt-looking) politicians by disregarding the constitutional limits of their powers is breathtakingly perverse. "The First Amendment's core purpose is to foster a healthy, vibrant political system full of robust discussion and debate," Justice Kagan observes in her dissent. She's right about that--and deeply wrong to think she has a better way of accomplishing that goal than by protecting the freedom of speech.
 
The Supreme Court’s continuing defense of the powerful

By E.J. Dionne Jr., Published: June 29, 2011
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The United States Supreme Court now sees its central task as comforting the already comfortable and afflicting those already afflicted.

If you are a large corporation or a political candidate backed by lots of private money, be assured that the court’s conservative majority will be there for you, solicitous of your needs and ready to swat away those pesky little people who dare to contest your power.

This court has created rules that will have the effect of declaring some corporations too big to be challenged through class actions, as AT&T customers and female employees at Wal-Mart discovered.

And remember how sympathetic conservatives are supposed to be to the states as “laboratories of democracy,” pioneering solutions to hard problems?

Tell that to the people of Arizona.

They used a referendum to establish a highly practical system of financing political campaigns that the court, in a 5-4 decision Monday, eviscerated. It was designed to reduce corruption and give a fighting chance to candidates who decide to forgo contributions from special interests.

The people acted, noted Justice Elena Kagan in a brilliantly scalding dissent, after a scandal in which “nearly 10 percent of the state’s legislators were caught accepting campaign contributions or bribes in exchange for supporting a piece of legislation.”

Under Arizona’s “clean elections” initiative, candidates who raised a modest amount in very small contributions could receive a lump sum of public money. They could raise no further private funds.

No candidate had to join the public system. But if a privately financed candidate or the interest groups supporting his or her campaign started outspending one who was publicly financed, the public system came to the rescue with additional cash so the “clean money” candidate wouldn’t be blown out of the race by lethal dollar bills.

Why was this important? Kagan was spot on: “Candidates will choose to sign up” for public funding “only if the subsidy provided enables them to run competitive races.” Such breathtaking common sense has been missing from the majority’s recent campaign finance decisions — notably its Citizens United ruling, also a 5-4 conservative ukase, allowing our poor, beleaguered corporations to expand their power in American politics.

Here’s the stunning part: For years, opponents of campaign finance reform have accused those who want to repair the system of trying to reduce the amount of political speech. But Arizona’s law, as Kagan pointed out, “subsidizes and so produces more political speech.” And then there was this shot at Chief Justice John Roberts’ majority opinion: “Except in a world gone topsy-turvy, additional campaign speech and electoral competition is not a First Amendment injury.”

Indeed, Roberts had to argue that those terribly downtrodden candidates financed with private money had their speech “burdened,” simply because their publicly financed opponents had the means to respond.

Kagan and the dissenters stood up for free speech. Roberts’ majority defended paid speech. The dissenters want to allow candidates to talk; the majority wants to enhance money’s ability to talk.

Roberts was especially exercised over any notion of “leveling the playing field” between private-money candidates and their challengers. He even included a footnote calling attention to the Citizens Clean Elections Commission’s Web site, which once said the law was passed “to level the playing field when it comes to running for office.” Horrors!

Kagan archly noted the “majority’s distaste for ‘leveling’ ” and then dismissed its obsession, observing that Roberts failed to take seriously the Arizona law’s central purpose of containing corruption. Leveling was the means, not the end.

Nonetheless, pay heed to how this conservative court majority bristles at nearly every effort to give the less wealthy and less powerful an opportunity to prevail, whether at the ballot box or in the courtroom. Not since the Gilded Age has a Supreme Court been so determined to strengthen the hand of corporations and the wealthy. Thus the importance of the Wal-Mart and AT&T cases, the latter described by the New York Times as “a devastating blow to consumer rights.” Will the court now feel so full of its power that it takes on the executive and legislative branches over the health-care law?

In 1912, Theodore Roosevelt warned that the courts had “grown to occupy a position unknown in any other country, a position of superiority over both the legislature and the executive.” Worse, “privilege has entrenched itself in many courts just as it formerly entrenched itself in many legislative bodies and in many executive offices.”

What happens to a democracy when its highest court dedicates itself to defending privilege? That’s the unfortunate experiment on which we are now embarked.

ejdionne@washpost.com