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Don't Bet on Kagan Overturning Citizens United

If there's one thing we are supposed to know about Supreme Court nominee Elena Kagan, it is that she is firmly opposed to the court's recent decision in Citizens United v. Federal Election Commission. When President Obama nominated Kagan in May, he noted that "last year, in the Citizens United case, she defended bipartisan campaign finance reform against special interests seeking to spend unlimited money to influence our elections." That argument (her first in front of the court as solicitor general), he said, "says a great deal about her commitment to protect our fundamental rights, because in a democracy, powerful interests must not be allowed to drown out the voices of ordinary citizens."

In Citizens United, the court struck down federal laws forbidding private corporations from spending their funds to influence the voters before federal elections. The First Amendment, it said, protected corporations' right to fund advertisements for or against candidates. (It has not extended this principle to direct corporate contributions to candidates.) Obama, the Democratic Party, and the progressive community generally have reacted to the decision with horror.

Presidents cannot count on justices to vote the way they expect them to. Theodore Roosevelt appointed Oliver Wendell Holmes Jr. in the expectation that Holmes would back him on busting the trusts. When Holmes defected, TR exclaimed, "I could carve a better judge out of a banana than that!" Before his appointment, Lewis Powell had loudly argued that presidents should have unlimited authority to wiretap "national-security" risks. On the bench, however, Powell wrote the opinion banning just such wiretaps. Later he said that "when you put that black robe on and take the oath, I think your entire viewpoint begins to change."

That Obama's appointees will succeed in limiting the Citizens United precedent seems to me unlikely. The decision is going to be hard to attack, in part because those leading the attack don't necessarily have clean hands. Obama is Exhibit A: he should be aware that, without meaning to, he filed one of the most influential "friend of the court" briefs in the case. That "brief" began, "I, Barack Obama, do solemnly swear . . . ."
 
Remember that in June 2008, Obama became the first presidential candidate in more than 30 years to opt out of the public-financing program and rely entirely on funds he raised himself. He had earlier seemed to promise to remain in it. But that was before he realized that the circumstances of 2008--popular excitement about his candidacy, his organization's mastery of the Internet, and the unpopularity of the Republican Party--had given him the keys to the campaign-fund bank. Giving up the $84 million public funding offered, Obama instead amassed a total of $745 million in private funds, nearly twice what Sen. John McCain could raise. In so doing, he almost certainly destroyed the public-funding system for presidential elections, the single remaining achievement of the post-Watergate wave of reform.

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Garrett Epps is a contributing writer for The Atlantic. He teaches constitutional law and creative writing for law students at the University of Baltimore. His latest book is American Justice 2014: Nine Clashing Visions on the Supreme Court.

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