“How to Tell Where Brett Kavanaugh Stands on Citizens United”

Adam Liptak for the NYT:

Judge Brett M. Kavanaugh has a favorite sentence. It explains why he is likely to reaffirm and build on the Citizens United decision if he is confirmed to the Supreme Court.

The sentence appeared in a 1976 Supreme Court decision, Buckley v. Valeo. It was, Judge Kavanaugh wrote in 2009, “perhaps the most important sentence in the court’s entire campaign finance jurisprudence.”

In 2013 and again last year, he went further, calling it “one of the most important sentences in First Amendment history.”

He was referring to this: “The concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment.”…

Judge Kavanaugh’s most interesting campaign finance decision, Bluman v. Federal Election Commission, in 2011, appears to cut in the opposite direction, at least at first blush. Writing for a three-judge panel of the Federal District Court in Washington, he said two foreign citizens living in the United States on temporary work visas could not spend money to call for the election of American politicians.

Two things are notable about the decision, Richard L. Hasen, a law professor at the University of California, Irvine, has written. The first is that it is difficult to reconcile with Citizens United. The second is that it was quite limited, leaving plenty of opportunities for foreign influence on American elections.

Harmonizing Judge Kavanaugh’s decision with Citizens United is hard because Justice Kennedy’s majority opinion said that “the First Amendment generally prohibits the suppression of political speech based on the speaker’s identity.”…

At the same time, he carved out an important exception. On the one hand, he said, a federal law barring most foreign nationals from contributing to candidates or spending money to promote their election was constitutional. But he said foreigners remained free to spend money on “issue advocacy — that is, speech that does not expressly advocate the election or defeat of a specific candidate.”

That leaves room for plenty of lawful spending, as it is child’s play to recast prohibited express advocacy (“Vote for Trump”) into a permissible issue advocacy (“Trump wants to help American workers”).


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