Piling on Elana Kagan

“We don’t put our first amendment rights in the hands of FEC bureaucrats” – Chief Justice John Roberts

In 2009 Elana Kagan, as Solicitor General, made an odd argument before the Supreme Court in favor of broad powers for the FEC. A snippet of her remarks can be found here: Kagan Remarks. The law in question gave the FEC broad authority to limit political speech, including (according to Kagan) the right to ban books. Kagan’s argument against throwing out the law on this basis was basically that the FEC has never applied the statute in that manner so it should not be used to nullify the law.

Now, in Kagan’s defense, she may not at all have supported the argument and was only doing her level best to do her job as Solicitor General. Just as defense lawyers have to put up a valid and rigorous defense for dirt-bags that they know to be guilty, Kagan may have actually opposed the statute but was bound to do her duty.

Nonetheless, the statute itself is disturbing. The idea of “give us (the government) broad powers to subvert rights, and we promise (wink) to only use them for good” has got to be disturbing to anyone with a modicum of respect for human freedom.

It reminds me all a bit too much of Elie Wiesel’s account of the Nazi occupation of his hometown in Night. They used the slow-boiling frog approach. They slowly took rights away from the Jews until they convinced them to get on the boxcars headed to the concentration camps. The claim all along had been that it was all done for the safety of the Jews. The game was over by the time the oppressed figured out that what had supposedly been done for their good was actually being done to overthrow them.

It takes a long time to cook a frog as big as the US of A, but the water seems to be getting a bit hotter.

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