Senate Republicans will unveil a new line of attack against Supreme Court nominee Elena Kagan on Wednesday, accusing the solicitor general of using the law to give an advantage to one political party.
In a Wednesday afternoon floor speech, Minority Leader Mitch McConnell (R-Ky.) is expected to argue that new memos outlining Kagan’s role in developing campaign finance legislation during the Clinton administration raise serious questions about whether she can bring a balanced approach to the law.
“The key to this is not that there are political people out there. … [But] I don’t think anyone would expect Karl Rove to be nominated to the Supreme Court,” a GOP leadership aide said, comparing Kagan to the former George W. Bush adviser who masterminded his campaign victories.
“This is someone we’re now asking to have an unbiased view on these issues? Its just not possible,” the aide added.
At the heart of McConnell’s attacks are a handful of memos developed in the wake of 1996 Supreme Court campaign finance ruling. In the case, Colorado Republican Federal Campaign Committee v. the Federal Election Commission, the court found that the FEC could not control “hard dollar” spending by party committees on advertisements that advocate the election or defeat of a particular candidate.
Worried that the ruling would provide Republicans with a leg up because of their hard-dollar fundraising prowess, the White House began working on a new round of campaign finance laws.
Kagan authored a number of memos related to the effort, and Republicans are seizing on them as proof that she views the law as a tool to gain a particular outcome — in this case, trying to neutralize the effect of the ruling on Democrats.
For instance, Republicans say, Kagan noted in one memo that “free tv” could act as a “balance to independent expenditures,” and that the idea was “clearly on the mind” of Democrats.
In a second memo, Kagan noted that “soft $ ban affects Repubs, not Dems!” and appears to raise the possibility of having the Federal Communications Commission “issue a reg for free TV.”
The GOP leadership aide argued that the cryptic documents — and particularly the use of an exclamation point — highlighted Kagan’s enthusiasm for finding a way to provide Democrats with a legal advantage over Republicans.
The aide argued that for Kagan, “the problem is not how can we make the election process more fair, it’s that Democrats feel like they’re disadvantaged.”
“There’s a level of exuberance here. She’s clearly illustrating here that … [she is] creating an electoral advantage” for Democrats, the aide added.