June 24, 2010

Was SG Kagan "Gleeful" in Writing of a Soft Money Ban: "Affects Repubs, Not Dems!"?

Back on June 4, I had a post which noted the following about information in the Kagan files released by the Clinton library:

    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.

Today's NY Times notes that Sen. McConnell has used this statement and these notes as a way of attacking SG Kagan as a "political operative." The article states that the Senator "cited memorandums and notes Ms. Kagan wrote about campaign finance during the Clinton administration, including one in which she seemed to gleefully scribble in the margins that a ban on soft money "affects Repubs, not Dems!" (my emphasis)

I don't read the note as gleeful. It looks like the context of the comment was notes from a meeting with Joan Claybrook and two others about how to proceed on campaign finance reform. The notes reveal someone engaged in brainstorming, considering what might get support in Congress. And of course whether something gets support in Congress will depend in part upon political calculations. So I read the "affects Repubs, not Dems!" comment as one that recognizes that it could be difficult to get a soft money ban passed if it would have partisan consequences. I don't see any gleefulness there at all.

Posted by Rick Hasen at June 24, 2010 05:14 AM