The Kagan Principle

[Valin]

WSJ:

The more stubbornly corrupt the government is, the more justified it is in curtailing fundamental liberties.
JAMES TARANTO
7/1/11

We've been thinking a lot about Justice Elena Kagan this week. Normally we'd file such a revelation under "The Lonely Lives of Columnists," but our musings are about weighty matters of constitutional law--specifically, Kagan's dissent in Arizona Free Enterprise Club's Freedom PAC v. Bennett, the final case the Supreme Court decided this term.

As we noted Tuesday, the 5-4 decision struck down an Arizona law that penalized political speech by subsidizing opposing speech: If, say, you gave $100 of your own money to a Democratic candidate for state Senate, Arizona would take $100 from the taxpayers and give it to the Republican candidate. The provision applied to "independent" expenditures too, so that if you gave $100 to an advocacy group campaigning on behalf of the Democrat, the Republican's campaign would get $100 in tax money to spend as it saw fit--even though the Democratic candidate, by law, was forbidden to influence the advocacy group's efforts.

(Snip)

The idea of rewarding corrupt (or corrupt-looking) politicians by disregarding the constitutional limits of their powers is breathtakingly perverse. "The First Amendment's core purpose is to foster a healthy, vibrant political system full of robust discussion and debate," Justice Kagan observes in her dissent. She's right about that--and deeply wrong to think she has a better way of accomplishing that goal than by protecting the freedom of speech.