Citizens United Déjà Vu for Malcolm Stewart

The Supreme Court heard oral arguments in the matter Wednesday. Ted Cruz, FEC against Senate. This case presented an obstacle to campaign finance laws. Malcom Stewart from the Solicitor General’s Office defended the federal law. His experience is in this area. He was even involved in the defense of campaign finance laws more than 10 years ago. Citizens United.

Justice Alito asked, “government position?” in one of the most memorable exchanges. . . [would]Please allow[]The banning of books published by corporations? Stewart candidly responded, “The electioneering communication restraints.” . . could be applied to other media.” It could even be a book. Justice Alito was shocked by the response: “That’s quite incredible.” It seems that you think that, if a book were published and a campaign biographie was used as express advocacy, it could be prohibited. It was yes.

Six months later, the government had changed its mind when the case was reargued. Justice Ginsburg asked Elena Kagan the future-Justice and Solicitor General, “If Congress could say no TV and Radio ads’, could it also state ‘no newspaper advertisements, and no campaign biographies’?” Last time it was answered that Congress could but couldn’t. What is the government’s current answer? Kagan replied, “The government has changed its answer.” Kagan let out a loud laugh. She said, “A book has never been an issue for 60 years.”

The Ted CruzStewart answered Justice Alito’s question with a piercing hypothese:

JUSTICE ALTO: Mr. Stewart is . . Your argument is this: The constitutionality of an unconstitutional law restricting the exercise a right can’t be challenged by a party if it could easily have satisfied all the requirements for its exercise.

Stewart could not help but answer “yes”

MR. STEPART: We would most likely say that. However, I do not believe it necessary that the Court go so far as to decide the case in this.

Justice Alito joined the fray with the same incredulity that he displayed in Citizens United It was almost thirteen years ago.

JUSTICE ALTO It’s hard to believe that this could be the law.Imagine a university stating that no one of a certain race can enter any university building unless they pause for at least two seconds and then stand still for two second before entering. 

You would say that you cannot challenge the racial restrictions because you only need to stop for 2 seconds before entering the building. 

Stewart must have had a case of déjà vu. He handled the question with the professionalism he deserves.

It is surreal to realize that Justice Alito, thirteen years ago, was my junior justice. Five new judges have been appointed to the bench since then. Alito currently ranks as fourth in seniority. Zero changes have occurred in Court personnel over the eleven-year period since Justice Breyer’s confirmation. It is amazing how quickly the time flies.