New GOP argument against Kagan: She could ban books

Republicans introduced a new argument against Elena Kagan's nomination today, suggesting she believes in banning books.

In an interview on NBC's "Meet the Press," Minority Leader Sen. Mitch McConnell (R-Ky.) pointed to the argument Kagan's office made before the Supreme Court in Citizens United vs. FEC, a controversial campaign finance case.

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"Solicitor Kagan's office in the initial hearing argued that it would be OK to ban books," McConnell said. "And then when there was a rehearing Solicitor Kagan herself in her first Supreme Court argument suggested that it might be OK to ban pamphlets.

"I think that's very troubling, and this whole area of her view of the First Amendment and political speech is something that ought to be explored by the Judiciary Committee and by the full Senate," McConnell said.

In the case in question, Chief Justice John Roberts asked the government lawyer whether the law in question could also prevent the publication of a campaign-related book, if it was paid for by a corporation or labor union.

“If it's a 500-page book, and at the end it says, 'and so vote for x,' the government could ban that?” Roberts asked.

Kagan's deputy, Malcolm L. Stewart, said yes.

"We could prohibit the publication of that book," he responded.

In a later oral argument, Kagan slightly modified that position, but still found herself arguing that the government could ban certain pamphlets, depending on who paid for their publication.

"And if you say that you are not going to apply it to a book, what about a pamphlet?" Roberts asked.

“A pamphlet would be different. A pamphlet is pretty classic electioneering, so there is no attempt to say that [law] only applies to video and not to print," Kagan responded.

Shortly after McConnell's comments, his office highlighted the case in an e-mail to reporters, suggesting famous pamphlets like Thomas Paine's "Common Sense" and the Federalist Papers could be banned under Kagan's logic.

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