Elena Kagan on Government Reform
Commerce clause does not apply to non-economic activities
[At CPAC, Sen. Paul cited] Sen. Tom Coburn's hypothetical question about whether the government through the commerce clause could regulate that you eat three vegetables a day. Kagan's response was not "yes." She outlined precedents set by the Supreme
Court and how the commerce clause has been applied, but she did not give a response to Coburn's hypothetical question about vegetables.
Kagan, June 29, 2010: "The commerce clause has been interpreted broadly. It's been interpreted to apply to regulatio
of any instruments or channels of commerce, but it's also been applied to anything that would substantially affect interstate commerce. It has not been applied to non-economic activities, and that's the teaching of Lopez and Morrison, that the
Congress can't regulate non-economic activities, especially to the extent that those activities have traditionally been regulated by the states. And I think that that would be the question that the court would ask with respect to any case of this kind."
Source: FactCheck.org on 2011 Conservative Political Action Conf.
, Feb 15, 2011
Aggressive advocate for campaign finance reform
Kagan has already distinguished herself as an aggressive advocate for campaign finance reform. The first case Kagan argued as solicitor general was Citizens United v. Federal Elections Committee. It was one of the cases Obama referenced when he
said, "In a democracy, powerful interests must not be allowed to drown out the voices of ordinary citizens." In one fell swoop, the Court upended decades of campaign finance laws that kept corporations and their unlimited financial resources out
of the political process. Kagan argued that if Roberts and the other conservative justices had their way, which they ultimately did, the voice of the ordinary American would simply be overpowered by the deep pockets of corporate America.
This issue is not going away anytime soon. In one way or another, it will be before the Court in the coming years and the next justice will play a critical role in the outcome.
Source: Josh Gottheimer in US News & World Report, "5 Reasons"
, Apr 9, 2010
Public campaign finance can fund based on opponent spending.
Justice Kagan wrote the dissent on AZ FREEDOM CLUB PAC v. BENNETT on Jun 27, 2011:
An Arizona public campaign financing law allowed a person who agreed to the restrictions of a publicly financed campaign to receive an initial allotment from the state. That initial allotment was increased when the spending of a privately financed opponent together with the spending of any independent group exceeded that initial allotment. The public funds to match opponent expenditures topped out at two times the initial allotment.
HELD: Delivered by Roberts; joined by Scalia, Kennedy, Thomas & AlitoArizona's public financing law places a burden on privately financed candidates. If privately financed candidates spend money above a certain level, they necessarily entitle their publicly financed opponents to greater funding. Their First Amendment right to free speech in a political matter--which includes spending money on their campaigns--is inhibited. Independent groups do not qualify for public financing at all, but their spending still may lead to a funding
increase for the candidates the independent groups oppose. Leveling the playing is not a compelling state interest justifying a burden on a First Amendment right, nor is combating corruption. Arizona would be free to give the maximum amount to all public candidates, but that does not justify inhibiting the free speech of candidates and independent groups.
DISSENT: Kagan dissents; joined by Ginsburg, Breyer, and SotomayorThe First Amendment's core purpose is to foster a political system full of robust discussion and debate. Arizona's public campaign finance did not restrict speech, it increased speech through public subsidy with the goal of decreasing the corruption of both quid pro quo campaign payments made in exchange for official acts or an office seeker feeling beholden to his great financial supporters. Any burden on free speech, the burden could hardly be more substantial than what the Court announces would be legal: a larger, up-front allotment to a public candida
Source: Supreme Court case 11-AZ-PAC argued on Mar 28, 2011
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