[Richard L. Hasen, the expert on campaign law, wrote the title article. This is a reply I posted over at the Slate fray.]
Since free speech matters is one area where Kagan has something of a track record, it could be useful to use her writings and advocacy as something of a window into her philosophy and possible actions as a justice.
She will likely try to limit the questions in various cases because of her role when advocating the various positions, including as solicitor general. The article does this somewhat itself, including arguing that she was new to the job and was coming into an active case. OTOH, her roles here will be used to provide not only bona fides as to experience but also assurances to those on the left (and elsewhere) who are worried about her positions (or lack thereof). A bit of having your cake and eating it too will occur. See this very article -- the idea she might join the majority in Citizens United will not please many Obama supporters.
The banning books matter provides a ready soundbite, though one of questionable value given (1) the popularity of the legislation at issue and (2) Stevens dissented in Citizens United. As with the keeping military recruiters off campus/hate the military soundbite, it is also misleading. This doesn't quite take her off the hook. As she noted in oral argument, books were never targeted and if they were, it would be a good "as applied" challenge. OTOH:
Chief Justice Roberts: But we don't put our (.) we don't put our First Amendment rights in the hands of FEC bureaucrats; and if you say that you are not going to apply it to a book, what about a pamphlet?
General Kagan: I think a (.) a pamphlet would be different.
A pamphlet is pretty classic electioneering, so there is no attempt to say that 441 b only applies to video and not to print.
So, no Federalist Papers in book form, but the individual essays ... Okay, but are we talking "ban" here or not? The article notes:
But to these justices, requiring the corporation to set up a separate fund to pay for corporate election-related spending was a "ban" on speech, because PACs impose administrative burdens on those who run them. And thus the idea that the government was ready to ban books was born.
Lots of concerns are raised regarding "freedom of speech" that does not directly go to "banning" the speech itself. For instance, the Court determined anonymous pamphlets by individuals was protected under the First Amendment. Freedom can be burdened without directly banning the specific matter. And, so is the case here -- this regulatory regime is complicated and expensive. It also in various ways prevents corporations and unions directly to speak, indirect methods set up, particularly PACs. It "bans" them in that respect. We then determine if that's okay.
It is quite true that we can only take so much from what Kagan advocated as solicitor general, though I'm inclined to believe that taking that position (or the role she had under Clinton) means she is generally sympathetic to the views of the administration as a whole. We are not just talking total hired guns in such political positions, are we?* There is some debate on what her First Amendment views, including in the political campaign regulation context, truly are. Thus, the "blank slate" quality of her nomination.
Articles like the "private speech/public purpose" one that are tasked as 'descriptive' of Supreme Court case law do only so much to help fill in some details. She provides an extended analysis to argue that illicit motive is a primary concern in Supreme Court cases in this area; it isn't the only concern, but it appears to her the major one. Is this a good thing? She doesn't really want to make such a normative determination, her role understanding what the Supreme Court decided (which now will be her new role). For instance:
Democracy demands that sovereign citizens, through each generation, retain authority to evaluate competing visions and their adherents to decide which ideas and officials merit approval.
So a law with a motive that invades such choices would be wrong. But, how much of a "zealot" is she? Any number of "motives" might be considered that seem not to invade such democratic decision making (e.g., to protect animals by not portraying their harm -- at least, this can be claimed; I'm not supporting it here). Hasen notes that "she is deeply concerned about incumbents passing laws to protect themselves from competition." But, is a law concerned with legalized bribery (as some say) okay? Kagan in FN143 here suggests the problem with the case overruled in Citizens United, but it is unclear to me if she supports the recent ruling or felt some other governmental interest should have been used to uphold the law.
Free speech along with presidential control of agency decision making seem to be the two areas where Kagan actually has some significant scholarship to her credit (though the latter is specifically focused on one seminal article). Where she falls is unclear, though a fair bet would be a type of Justice Breyer.** Focusing on her support of "banning books" won't be helpful, but when "regulating pamphlets" might be okay ... well, we might have an opening.
Some more discussion of her views can be found here. Bottom line, a confirmation hearing should somehow be a chance to determine how a specific candidate is different from another -- they aren't all fungible, even if pablum hearings try to convince otherwise.
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[footnotes added]
* To the degree Obama is not liberal enough, or whatever, his nominees will in various cases be somewhat upsetting to critics.
** This is an educated guess determined by such things as her purported pragmatic tendencies, her support of Justice Breyer's approach in that department in her "presidential administration" article (certain executive action is appropriate if it advances certain ends; this seems related to the "motive" analysis of free speech, where a restrictive law might be legitimate if it furthers certain ends) and Obama's use of him as a model in his campaign biography.