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."
