A motion filed today with the Supreme Court asks the justices to give argument time to a lawyer for the congressional sponsors of the McCain-Feingold campaign finance law on Sept. 9, when the Court will hear arguments in the closely watched Citizens United v. Federal Election Commission case.
Solicitor General Elena Kagan filed the motion along with former solicitor general Seth Waxman, now with Wilmer Cutler Pickering Hale and Dorr. Waxman represents the congressional sponsors of McCain-Feingold, as he has in the past.
First argued in March, the case tested whether a 2008 film critical of then-presidential candidate Hillary Clinton amounted to an improper electioneering communication using corporate funds. But on the last day of the term the Court ordered new arguments and expanded the scope of the case to ask whether important precedents --including a part of McConnell v. FEC, which upheld the 2001 McCain-Feingold law -- should be overruled. With that wider scope, today's motion states, the law's sponsors "have a significant interest in the case" and should be given 10 minutes of the government's 30 minutes of argument time to defend the statute.
Waxman confirmed today that if the Court grants the motion, he would argue on Sept. 9. That poses the likelihood of a three-way battle of titans: Waxman, arguing alongside new SG Kagan, who will be making her first argument before the Court, and opposed by former solicitor general Theodore Olson. If Supreme Court nominee Sonia Sotomayor is confirmed, it will also be the first oral argument she will hear as a justice.
Asked about the prospect, Olson said in an e-mail, "I am quite pleased to be a part of Solicitor General Kagan's first argument, and it is always a great pleasure to argue in a case with (or against) Seth, for whom I have the very greatest respect and admiration. As an additional pleasure, it will almost assuredly be the first argument for Justice Sotomayor."
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