Did you read then Solicitor General Kagan's argument that basically said "Yeah, this legislation gives the Feds the power to ban books [emph. added], but that's irrelevant because we would never do such a thing."
Kagan said no such thing.
Yes, actually she did. [...] She is arguing that the law DOES cover books but you don't need to worry about it because the Government has never tried to regulate books and if it did there would be grounds for a legal challenge [emph. added].
*Sigh*. WTF? How can you guys take yourselves seriously when you are so clearly taking many things out of context and (intentionally?) misinterpreting clear sentences?
Kagan's quote: "It is still true that BCRA 203, which is the only statute involved in this case, does not apply to books [emph. added] or anything other than broadcast; 441b does, on its face, apply to other media." So part of the law actually under consideration (BCRA 203) does not apply to books, but another section (441b) does. So what is 441b? The first part of the text of that statute reads:
It is unlawful for any national bank, or any corporation [...], to make a contribution or expenditure in connection with any election to any political office[...]
The statue goes on to prohibit unions from making such contributions to federal elections (President, VP, Senate, etc.).
Let me make this very clear: This statute in no way gives the government the power to ban books. And Kagan was making no such claim. Rather, by stating that 441b applied to books, Kagan's argument was as follows. If a corporation paid for the publication of a book that was intended for the purposes of electioneering, that corporation has broken the law. The electioneering element is very clear. This does not apply to books in general. The book has to target a specific candidate and be published in the area where it would have an impact on a particular election. Furthermore, 441b only applies if the publication of the book was paid for by a corporation. If a private individual wanted to publish a book attacking a candidate, 441b does not apply. If a political action committee or a non-profit group or any collective group other than a corporation or national bank paid for the publication of such a book, 441b does not apply.
Even if the statute does apply, the book would not be banned. Rather, the corporation would face prosecution under the statute. In addition, publication of the book would be delayed at most, so as not to sway the electorate. Once the election is over and publication of the book holds no power over that particular election, publication would be allowed to proceed. Of course, as Solicitor General Kagan pointed out, even if there were a book that met all the criteria (corporate-funded solely for electioneering), which is very unlikely, courts would most likely allow the immediate publication because there is a strong argument for a legal challenge. So she is stating that if the government tried to pull such a trick, they'd almost certainly lose.
Finally, note that 441b does not apply to general political speech. Corporations can gladly pay to make Fahrenheit 9/11 or publish Ann Coulter's books, or any other such screed, because those works do not fit the criteria of electioneering. While candidates may be singled out, they are never done so individually. Fahrenheit 9/11, for example, took aim at the culture of the federal government after 9/11. Sure, it takes plenty of shots at Bush. But it also talked about the invasion of Iraq, 9/11 itself, the impact on people, how everyone in Congress (except Feingold) voted for the USA PATRIOT Act without reading it, etc. Political? Yes. Electioneering? No.
This is all a far cry from the suggestion that Kagan was claiming the federal government had the power to ban books.