Looking at Elena Kagan's scholarship, I doubt she agrees with Barack Obama and Justice Stevens, who dissented in Citizens United, and suspect she is a defender of corporate speech rights. Since this would surprise some people, I unpack it here in some length (for a blog post).
...Kagan's critics (led perhaps by Glenn Greenwald) and defenders have sparred over executive privilege and some hiring decisions at Harvard and her opposition of Roe v. Wade.
...We can expect Kagan to be questioned about Citizens United. And, during confirmation hearings, a Senator asked Justice Sotomayor about precisely question of phone and cable companies' supposed First Amendment rights to interfere with citizens' speech choices, and a judge asked the question at the FCC's recent, major argument involving Internet policy.
For the answer, we can turn to one of Kagan's law review articles, which sheds some light on how she thinks about these issues.
In that article, she discusses two cases, Austin (later overruled by Citizens United) and Turner (which I'll explain here). To understand legal arguments, you have to know the cases discussed, as lawyers think in cases. If a lawyer says she supports Roe v. Wade and opposes Lochner v New York, you know what she means if you know those cases....
<snip>
Kagan, of course, actually argued Citizens United for the Obama administration; but that doesn't mean that she agreed with her client's position. It was her job as Solicitor General to represent her client (which Justice Roberts' confirmation reminded us), which she does in all her arguments, even those less popular. And,
in Citizens, Kagan refused to argue the case based on the existing precedent.
<snip>
Here is the conclusion I am reaching:
the implication of her arguments are that Austin should be overruled (Citizens United did that) and so should Turner, under the standard argument model, because they are "exceptions" to the broad rule. She does not explicitly call for their reversal, but
the argument structure almost necessarily implies it.
My caveats are:
1. She didn't come right out and say the cases should be overruled. She just made every other step in the argument, and didn't state the usual conclusion. Maybe that means she disagrees with overruling the cases. But there's little indication of that either.
2. Kagan wrote this article 14 years ago, and both the law and Kagan herself have changed since. She may have a different view of the rule and the exception for campaign finance and cable, or a different view of how they apply. She doesn't have a detailed record on the question.
3. Kagan's article claims to be descriptive, not normative. That is, she claims largely to be just describing case law, not endorsing it. But many people who support Austin and/or Turner would describe the law differently than she did--including Stevens in his Citizens dissent, and Turner in its majority, and scholars like C. Edwin Baker (also here), Jack Balkin, Yochai Benkler, and others.
More (plus insightful links
in situ) :
http://www.huffingtonpost.com/marvin-ammori/does-elena-kagan-disagree_b_569351.html