According to this article, which will appear in tomorrow’s Wall Street Journal, an administration official explained the strategy of SG Kagan to abandon the Austin antidistortion rationale as follows: “It was a conscious decision not to push a pet Thurgood Marshall theory, but a strategy to get to five [votes]…While parts of Ms. Kagan’s argument did overlap with ‘the president’s Citizens United rhetoric,’ the official said, ‘the notion that you’re going to get five people on this court to take a pure equalization rationale is a nonstarter.'”
For what it’s worth I completely agree that the argument would have been a non-starter, and I’ve said, it would not have changed the outcome in the case. The reason I disagreed with the strategy is because it gave an opening (which Chief Justice Roberts took) to further denigrate the rationale by saying: Look, even the government has abandoned it.
The government should have fought the good fight, which would have further allowed the dissent to make a full-throated defense of the argument, for the day when there is again a majority on the Supreme Court willing to uphold the constitutionality of reasonable campaign finance regulation. With the government having abandoned the argument, Justice Stevens, who embraced the rationale in earlier cases, did not do so in his Citizens United dissent.
I would not go so far as to call SG Kagan’s choice a mistake. Had she defended the rationale, that argument likely would have consumed all of her oral argument time, without a chance to make other arguments that had a better (though slim) chance of convincing one more of the Justices on the Court.