How to Tell Where Kavanaugh Stands on Citizens United

WASHINGTON — Judge Brett 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, 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.”

Rich people should be able to spend as much as they want in political campaigns, the Supreme Court said in 1976. “Equalizing the relative ability of individuals and groups to influence the outcome of elections,” the court said, did not justify limits on spending.

In 2010, in his majority opinion in Citizens United, Justice Anthony Kennedy quoted the sentence Kavanaugh admired and said it also applied to spending by corporations and unions.

“The First Amendment’s protections,” Kennedy wrote for a five-justice majority, “do not depend on the speaker’s financial ability to engage in public discussion.”

In dissent, Justice John Paul Stevens wrote of the sentence Kavanaugh had singled out that “this elegant phrase cannot bear the weight that our colleagues have placed on it.” There can be good reasons, he wrote, to allow “restrictions on the speech of some in order to prevent a few from drowning out the many.”

The divide on the question of whether the government has a role to play in regulating spending on political speech, with one side favoring liberty and the other equality, animates much of the contemporary debate over the meaning of the First Amendment. What seems plain is that Kavanaugh is on the libertarian side.

Kavanaugh hopes to replace Kennedy, for whom he once served as a law clerk. There is no particular reason to think he would replicate his old boss’s idiosyncratic jurisprudence, which included a mix of commitments.

But there is every reason to think a Justice Kavanaugh would continue to press one of his old boss’s signature projects: dismantling campaign finance laws that restrict the ability of people and groups to spend money to influence elections.

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 U.S. 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 U.S. elections.

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

President Barack Obama certainly read Citizens United to allow spending by foreigners. “I don’t think American elections should be bankrolled by America’s most powerful interests, or worse, by foreign entities,” he said in his 2010 State of the Union address.

Kavanaugh ruled against the two foreigners, saying their speech could be limited because they were not members of “the American political community.” (U.S. corporations, he wrote, were part of that community.)

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”).

In 2012, the Supreme Court affirmed Kavanaugh’s ruling in a four-word summary decision, a move that surprised Stevens, who had by then retired from the court.

“The appeal unquestionably provided the court with an appropriate opportunity to explain why the president had misinterpreted the court’s opinion in Citizens United,” Stevens said in a 2012 speech. “The court instead took the surprising action of simply affirming the district court without comment and without dissent.” In that same speech, Stevens made the case for equality, noting that the Supreme Court itself gives equal time to the lawyers on each side. In presidential debates, he said, the moderators try to let the candidates have comparable opportunities to express their views.

“Both the candidates and the audience would surely have thought the value of the debate to have suffered if the moderators had allocated the time on the basis of the speakers’ wealth, or if they had held an auction allowing the most time to the highest bidder,” Stevens said.

He still hoped, he said, for a re-examination of “the rule that Congress may not ‘restrict the speech of some elements of our society in order to enhance the relative voice of others,'” he said, quoting the sentence that is Kavanagh’s First Amendment lodestar.