Kagan argued Citizens United v. FEC before the court in the wake of her deputy, Malcolm L. Stewart, who created an uproar after Justice Roberts had asked him if the government could ban a 500-page book that at the end said, "And so vote for x."
Stewart answered, "We could prohibit the publication of that book."
According to the official transcript of testimony, Justice Ginsburg raised the question again when Kagan appeared before the court.
"May I ask you one question that was highlighted in the prior argument," Justice Ginsburg asked, "and that was if Congress could say no TV and radio ads, could it also say no newspaper ads, no campaign biographies? Last time the answer was, yes, Congress could, but it didn't. Is that is that still the government's answer?"
Kagan then modified her deputy's answer, arguing that while a section of federal election law referred to as 441b does, "on its face," apply to "other media," such as full-length books, the FEC "has never applied 441b in that context. So for 60 years a book has never been at issue."
Section 441b specifically prohibits corporations and labor unions from paying out of their general budgets for mass communications – like TV and radio commercials – that endorse candidates for federal office. The practice is seen as "electioneering" when done within 30 days of voting.
And while many organizations create separate political action committees to get around the "general budget" restriction of 441b, Citizens United had created a DVD made available for view-on-demand, which it argued did not constitute a "mass communication" according to federal law.
In the course of arguments before the court, however, the question arose as to whether books could be considered "mass communication."
Justices Scalia and Roberts were not satisfied with Kagan's answer and immediately sought clarification – Scalia suggesting interpreting the law so broadly as to include books might necessitate striking the law as unconstitutional, Roberts wondering whether even pamphlets would fall under Kagan's definition of "other media" regulated by 441b.
"I think a pamphlet would be different," Kagan answered. "A pamphlet is pretty classic electioneering, so there is no attempt to say that 441b only applies to video and not to print."
Upon her answer, Justice Scalia jumped into the argument as well, saying that based on Kagan's logic he had "no idea where the government would draw the line with respect to the medium that could be prohibited."
Kagan then softened her answer, reiterating an earlier suggestion that an FEC prohibition of a book would likely lose a legal challenge and adding, "What we're saying is that there has never been an enforcement action for books. Nobody has ever suggested – nobody in Congress, nobody in the administrative apparatus – has ever suggested that books pose any kind of corruption problem."
Scalia, however, was still not appeased.
"So you are a lawyer advising somebody who is about to come out with a book and you say, 'Don't worry, the FEC has never tried to send somebody to prison for this,'" he postulated. "'This statute covers it, but don't worry, the FEC has never done it.' Is that going to comfort your client? I don't think so."
The discussion resolved when Justice Roberts brought back his original question of whether or not a book produced by a corporation or union that ended with "vote for Jones" could be banned.
"I think that that wouldn't be covered, Mr. Chief Justice," Kagan responded. "The FEC is very careful and says this in all its regulations to view matters as a whole. And as a whole that book would not count as express advocacy."
Could an entire book be considered "express advocacy" and face an FEC ban?
Kagan's only answer came in an earlier statement: "One cannot imagine very many books that would."
