Editor’s Note: An earlier version of this story incorrectly described a series of cases for which Elena Kagan represented the government as eligibility cases. Those cases, in fact, were a series of unrelated disputes pending before the Supreme Court and the references have been removed from this report.
Just as the U.S. Senate was voting to install President Obama’s one-time solicitor general, Elena Kagan, on the U.S. Supreme Court bench, a case was discovered in which she represented the government against an organization called “The Real Truth About Obama.”
Kagan, while solicitor general of the U.S. from March 2009 until May, was listed as the government’s counsel on the files when the dispute reached the U.S. Supreme Court.
The case focuses on the organization’s desire to broadcast ads explaining Obama’s support for abortion, but it explains it “was in danger of an enforcement action and civil and criminal penalties by the Federal Election Commission” because of its uncertainty over federal campaign rules.
The organization filed the action to challenge the constitutionality of three FEC rules – and an FEC enforcement policy, alleging they “chilled” its right to disseminate information about Obama’s abortion perspective.
The district court rejected the organization’s claim, and at the 4th U.S. Circuit Court of Appeals, that decision was affirmed.
The case, handled by the James Madison Center, however, turned into a sudden victory when it reached the Supreme Court, because only a few days after it was distributed for conference among the justices, an order was issued granting the petition for certiorari, vacating the judgment of the appeals court and returning it to the lower court “in light of Citizens United v. Federal Election Commission.”
The James Madison Center explained that the “Real Truth About Obama” effort “wanted to broadcast an ad explaining Obama’s support of abortion” and also planned a website.
“However, if (Real Truth About Obama) had proceeded, it was in danger of an enforcement action and civil and criminal penalties by the Federal Election Commission. Even though (Real Truth About Obama) simply wanted to discuss issues without expressly advocating Obama’s defeat, the FEC rules may classify it as a PAC, subject to certain harsh requirements,” the legal team explained.
With another decision, regarding “Citizens United,” the Supreme Court had made a ruling on the subject matter at hand, and thus returned it to the lower court.
“The Supreme Court took a step towards protecting issue advocacy here,” James Bopp Jr., counsel for Real Truth About Obama, said of the recent results. “This case exemplifies the flaws in the preliminary-injunction process as, almost two years after bringing this suit, (Real Truth About Obama) remains chilled. We think that the Supreme Court’s Citizens United case bears heavily on the FEC’s broad and vague PAC definition rules and we are glad that the Fourth Circuit will have to take another look at it.”
Democrats in Congress had responded by proposing the DISCLOSE ACT, H.R. 5175, which would apply a long list of new reporting requirements for groups that haven’t met favor with the Democrats.
However, the proposal appears to have fallen by the wayside – for the present time – after it became clear there was not enough support in the Senate to advance it.
According to a report in Human Events, the plan would have required “disclosure” of donations and leaders of various groups that may release ads or make statements about political issues.
It was the “Citizens United” decision for which Obama blasted the Supreme Court, while the justices were sitting in the audience, during his 2010 State of the Union.
At Human Events, the Connie’s Congress column said, “Democrats have been scrambling to shut down conservative political speech before the November elections this year since the January U.S. Supreme Court decision in ‘Citizens United v. FEC’ that found freedom of speech applies to everyone: individuals, corporations and unions.
“Discontented with a more level playing field, Democrats threw together the DISCLOSE Act, a very lengthy and complicated piece of legislation designed solely to undo the court’s decision.”
“The First Amendment says ‘Congress shall make no law … abridging the freedom of speech.’ It’s first for a reason. Freedom of speech is the basis of our democracy,” House Minority Leader John Boehner, of Ohio, said. “The purpose of this bill, plain and simple, is to allow Democrats to use their majority in this House to silence their political opponents.”
President Obama, as chief of the Democrat majority, however, had been pleased with the idea of new restrictions.
“It mandates unprecedented transparency in campaign spending, and it ensures that corporations who spend money on American elections are accountable first and foremost to the American people,” Obama said in a statement.
Kagan, who was solicitor general during the time the case appeared in Washington, was listed as the counsel responsible for defending the FEC rules. But the high court’s orders also noted when she had suggested the case actually was moot following the “Citizens United” case.
At the time, Ed Morrissey at HotAir.com said Congress “should just read the First Amendment and get someone to explain the big words.”
In Washington’s bureaucratic language, the bill would have required “corporations, labor organizations, tax-exempt charitable organizations and political organizations other than political committees (covered organizations) to include specified additional information in reports on independent expenditures of at least $10,000, including certain actual or deemed transfers of money to other persons, but excluding amounts paid from separate segregated funds as well as amounts designated for specified campaign-related activities.”
It also would create “restrictions on the use of donated funds” and “requires any electioneering communication transmitted through radio or television which is paid for by a political committee (including a political committee of a political party), other than a political committee which makes only electioneering communications or independent expenditures consisting of public communications, to include an audio statement identifying the name of the political committee responsible.”
That means donors would have to be made public and leaders of such organizations identified in ads.