PJ Media

At one point Kagan was making a shareholder’s rights argument, i.e., that corporations should not be able to expend money on political activities because the shareholders may not agree with such activity. She again stumbled in her response to Justice Scalia’s point that this argument makes little sense since the overwhelming majority of corporations are small, sole proprietorships. The chief justice followed up with the observation that it is extremely paternalistic for the government to take the position that shareholders “are too stupid to keep track of what their corporations are doing and to sell their shares or object in the corporate context if they don’t like it.” Kagan’s only answer was that people (including her) are “too busy” to keep track of something like this. It got so bad that the liberal justices were tossing her leading questions to help her with her arguments.

Co-star Seth Waxman was only supposed to have a supporting role behind Kagan’s, but he was so good he upstaged the star. She was not ready for the big time — she should have come up through the studio system of making arguments in less substantial cases before she tried her hand in a major production like this one. In fact, Ted Olson’s rebuttal used her own arguments against her.

In a dramatic ending to his performance, Olson pointed out all of the ways that the government’s position in this case has changed as it felt the ground slipping out from under the FEC. First, the government now claims books would not be covered by the law. This is contrary to its position in March, when the government said Congress could even ban books if it wanted to extend the electioneering communications ban beyond broadcasts. Now suddenly the solicitor general said that the FEC had never gone after anyone for writing a book. Which is untrue — the FEC investigated George Soros for all of his “independent political activities” surrounding a book he wrote in 2004, The Bubble of American Supremacy: The Costs of Bush’s War in Iraq.

Second, the government changed its position on what type of corporation could be prohibited from engaging in political activity. It went from saying all corporations could be prohibited to saying that perhaps nonprofits like CU should not. And the government could not seem to decide on what basis it was justifying restricting the speech of corporations. It shifted from the claim that the corporation’s unfair aggregation of wealth distorts the political marketplace, to claiming it violates the rights of shareholders who may not agree with the corporation’s speech, to claiming it represents the danger of quid pro quo corruption.

The script lacked one dramatic element, although there were brief glimpses of it in the performances given by Olson and Abrams. When you step back from the technicalities of the law being discussed, you realize that this is still America.  This great democracy was born amid a raucous debate, in a time when pamphlets and broadsheets thundered their opinions, criticizing candidates, their views, their motives, and their family antecedents.

In America, we do not imprison people for making movies critical of presidential candidates. There were certainly various discussions of the “government’s interest” in censoring certain entities during the oral arguments. But there is no “government interest” that could possibly justify such a law, no matter how narrowly tailored it is.  As the chief justice rightly said, “We don’t put our First Amendment rights in the hands of FEC bureaucrats.”

All in all, this was a performance well worth seeing. Like Harry Potter fans everywhere, we now have to await the actual end to the production. Hopefully, it will be a happy ending that will restore the right to engage in political speech and political activity that has been wrongfully taken from us by a far-too familiar villain: patronizingly arrogant Washington plutocrats who think they know what is best for all the rest of us.