June 04, 2010

The Kagan Files, Campaign Finance, and Political Self-Interest

Many have speculated on the views of SG Kagan on campaign finance issues, with claims of everything from her being a book banner to a free speech zealot. There has not been much to go on beyond her 1996 Chicago law review article, which has a discussion of Austin, as well as her advocacy in the Citizens United case. I've suggested that we don't know nearly enough to be able to predict reliably how she'd vote in a case like Citizens United.

No doubt, those interested in these issues will turn to this afternoon's document dump from the Clinton library. (Scroll down to "Campaign Finance" to see 13 sets of documents.) There are a number of handwritten notes, some apparently from SG Kagan, many definitely not. There are also many emails and attachments, and in my first go through, there was not much material that I could definitely attribute to SG Kagan.

But a couple of things did catch my eye, related to SG Kagan's argument in her 1996 article about self-interested motives and campaign finance regulation. Check out this set of documents (not written by Kagan) which analyzes how Democratic and Republican federal candidates would be impacted by a set of six potential campaign finance rules that had been proposed by Common Cause. The other set of documents includes some handwritten notes, whose authorship is unclear. On page 3, this appears to be a meeting with Common Cause and Clinton administration officials, and includes the following notation: "Fallback to McF -- soft money ban -- affects Repubs, not Dems!"

As I recently argued, in my history of Buckley v. Valeo, campaign finance legislation tends to get passed when good government reformers can convince elected politicians that it is in their political interest to pass the proposed reform. In the case of 1974, Common Cause and its allies appealed to incumbents' desires to control campaign costs and not be on the wrong side of voter anger over Watergate." If SG Kagan saw similar partisan calculations in the attempts to pass McCain-Feingold, and if she continues to see potential illicit legislative motive as relevant to constitutional analysis, her experience could indeed color her view as to the constitutionality of such legislation.

Posted by Rick Hasen at June 4, 2010 02:13 PM