The Volokh Conspiracy

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Citizens United Déjà Vu for Malcolm Stewart?

In FEC v. Cruz, there was a flashback to the book-banning hypothetical.


On Wednesday, the Supreme Court heard oral argument in FEC v. Ted Cruz for Senate. This case presented a challenge to a campaign finance law. Malcom Stewart, the veteran from the Solicitor General's Office, defended the federal law. He has some experience in this arena. Indeed, more than a decade ago, he defended the campaign finance law at issue in Citizens United.

In one of the more memorable exchanges, Justice Alito asked if the "government's position . . . [would] allow[] the banning of a book if it's published by a corporation?" Stewart candidly replied, "the electioneering communication restrictions . . . could have been applied to additional media as well." Even a book. Justice Alito was taken aback by the answer: "That's pretty incredible. You think that if a book was published, a campaign biography that was the functional equivalent of express advocacy, that could be banned?" The answer was yes.

The government changed its position six months later when the case was re-argued. Justice Ginsburg asked Elena Kagan, the Solicitor General and future-Justice, "if Congress could say 'no TV and radio ads,' could it also say 'no newspaper ads, no campaign biographies'? Last time the answer was, yes, 'Congress could, but it didn't.' Is that still the government's answer?" Kagan answered, "The government's answer has changed." There was audible laughter. She added, "for 60 years a book has never been at issue."

In the Ted Cruz case, Justice Alito asked Stewart another piercing hypothetical question:

JUSTICE ALITO: Mr. Stewart, is . . . one of your arguments the following: A party cannot challenge the constitutionality of a law that imposes an allegedly unconstitutional restriction on the exercise of a right if the party could have very easily satisfied the preconditions for the exercise of the right?

Stewart had no choice but to say "yes."

MR. STEWART: I think we would probably say that, but I don't think it is necessary for the Court to go that far to resolve the case in this -

Justice Alito jumped in with the same sort of incredulity he expressed in Citizens United nearly thirteen year ago.

JUSTICE ALITO: Well, how can that possibly be the law? Suppose a state university says that no person of a particular race may enter any of the university buildings unless that person pauses for two seconds, stands still for two seconds, before entering the building. 

Would you say, well, you can't challenge that racial restriction because it's no big deal to pause for two seconds before you go into the building? 

Stewart must have had a case of déjà vu. Still, he handled the question like the pro that he is.

It's surreal to think that thirteen years ago–when I graduated law school– Justice Alito was the junior justice. Since then, five new members have been added to the bench. Now, Alito is fourth in seniority. In the eleven years after Justice Breyer's confirmation, there were zero changes in Court personnel. Time flies.