New documents released today in connection with President Obama’s nomination of Elena Kagan to the Supreme Court evidence the political uses of campaign finance reform. The memo (not on official letterhead?) seems to focus on the partisan advantage affixed to various campaign finance reform proposals. If Common Cause actively participated in these calculations it might cause some head-scratching in light of the group’s claims of nonpartisanship. (1) Putting aside Kagan’s involvement in the preparation or analysis of the documents, it does make you wonder what political calculations are the backers of the DISCLOSE Act making. (2) During oral argument in Citizens United, Kagan referenced the motivations of officeholders.
JUSTICE SCALIA: Congress has a self-interest. I mean, we — we are suspicious of congressional action in the First Amendment area precisely because we — at least I am — I doubt that one can expect a body of incumbents to draw election restrictions that do not favor incumbents. Now is that excessively cynical of me? I don’t think so.
GENERAL KAGAN: I think, Justice Scalia, it’s wrong. In fact, corporate and union money go overwhelmingly to incumbents. This may be the single most self-denying thing that Congress has ever done.