Updated at 12:11 p.m. on May 24.
To hear leading conservatives tell it, the specter of book banning looms large in the United States.
Book-banning fears helped convince the Supreme Court to throw out the decades-old prohibition on direct corporate campaign spending earlier this year. Now free speech champions are stoking those fears as the Senate takes up Solicitor General Elena Kagan's nomination to sit on the Supreme Court.
Kagan's oral arguments before the court in the Citizens United v. Federal Election Commission case are "very troubling," Senate Minority Leader Mitch McConnell of Kentucky declared on NBC's Meet the Press recently. He's also lambasted Kagan and her deputy on the Senate floor for telling the high court that, as he put it, "the federal government has the power to ban books and pamphlets."
It all sounds pretty alarming. As former FEC Commissioner Bradley A. Smith aptly noted in the American Spectator recently, "the idea of book banning strikes an emotional chord" in the U.S. In its darkest iteration, it calls up images of German students, incited by Nazi propagandists, tossing thousands of "un-German" books onto bonfires in 1933.
Of course, no book has been banned in the U.S. for close to half a century. By some accounts, the last book banned in this country was the John Cleland novel Fanny Hill in 1963.
So why the sudden uproar over book banning under the campaign finance rules? It all goes back to the Supreme Court's first round of Citizens United arguments last March, when Justice Samuel Alito asked Deputy Solicitor General Malcolm Stewart whether the ban on direct corporate spending could possibly extend to books.
In a rambling response that many regard as a turning point in the case, Stewart acknowledged that the ban could hypothetically include books and other media. But he quickly explained that election laws exempt the institutional press -- including book publishers -- from regulation.
Pressed on this point when the high court reargued the case in September, Kagan attempted to clarify that the government is not in the business of banning books. While she acknowledged that "on its face" the corporate spending ban could hypothetically extend to books, she stressed that the FEC has never imposed such a ban, and that if it did, it would be vulnerable to constitutional challenge.
Kagan told the court point-blank that "nobody in Congress, nobody in the administrative apparatus, has ever suggested that books pose any kind of corruption problem." Pressed further on whether the ban would apply to a pamphlet, if not a book, Kagan responded that "a pamphlet is pretty classic electioneering."
In his recent floor speech, McConnell said that argument "would come as a shock to the Founders, who disseminated quite a few pamphlets criticizing the government of their day."
But given direct mail's burgeoning role in elections, it should come as no surprise that the FEC regulates mass mailings of candidate promotional materials. Such mailings could take the form of fliers, glossy brochures or even (gasp!) pamphlets. And since corporations and unions are now free to underwrite such mailings in any event, the only real question is whether voters should know who paid for them.
"The distinction of pamphlet from flier or direct mail piece is meaningless," said Paul S. Ryan, associate legal counsel at the Campaign Legal Center. "What you're talking about here is print ads that cost big money to sway voters. And I think that disclosure is a good thing in that context."
To be sure, books have occasionally attracted FEC notice. Whenever book banning comes up, First Amendment defenders trumpet a 2004 FEC investigation that involved a book written by liberal financier George Soros, titled The Bubble of American Supremacy: The Costs of Bush's War in Iraq.
As it turns out, though, the FEC had no beef with the actual publication of Soros' book. Rather, the FEC objected to a high-dollar mass mailing that distributed some two million brochures used to market the book, which expressly advocated the defeat of President Bush. As it so often does, the FEC deadlocked in any case and failed to take action.
If anything, the 2008 presidential race suggests that book publishing has become all but a prerequisite for national political engagement. Democrats could choose between Barack Obama's The Audacity of Hope and Dreams from My Father; Hillary Rodham Clinton's Living History; and Joe Biden's Promises to Keep, among many others. Republicans had John McCain's Faith of My Fathers; Mitt Romney's No Apology: The Case for American Greatness; and Ron Paul's The Revolution: A Manifesto.
Indeed, when Bill Moyers brought up book banning on his PBS program last September, Campaign Legal Center President Trevor Potter had trouble keeping a straight face.
"I'm laughing because I think that is the epitome of a red herring here," Potter told Moyers. Potter pointed out the exemptions for press activity and for commercial speech. He also noted the danger of "essentially having a high-level law school seminar on the Supreme Court about hypothetical, constitutional questions... when the real world actually functions without any book banning at all."
CORRECTION: The original version of this column incorrectly named the magazine where Bradley A. Smith's piece appeared.
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