Another lawyer is seeking argument time in the intensely anticipated Sept. 9 Supreme Court hearing on the campaign finance case Citizens United v. Federal Election Commission. Noted First Amendment lawyer Floyd Abrams of New York's Cahill Gordon & Reindel has filed a motion seeking to share or expand former Solicitor General Theodore Olson's time in arguing against the FEC. For his part Olson, now with Gibson, Dunn & Crutcher, is having none of it; he opposes Abrams' motion. (Hat Tip to Election Law Blog, which first noted the docket entry.)
The motion and response are on file at the Court, and we've taken a look at both strongly-worded documents. Abrams represented Sen. Mitch McConnell (R-Ky.), the leading opponent of the McCain-Feingold campaign finance law, in the McConnell v. FEC case six years ago, and he is representing McConnell again. The senator, Abrams contends, is "uniquely qualified" to address one of the questions the Court wants answered in the Sept. 9 reargument of Citizens United, namely whether the part of the McConnell decision upholding the ban on corporate spending for electioneering communications should be overruled.
Abrams pointedly said in his motion that Olson's brief on behalf of Citizens United is "sparse and tentative at best" on that part of the question raised by the Court, and focuses instead on the question whether Austin v. Michigan Chamber of Commerce, another key decision against corporate spending, should be overruled. McConnell's "distinct interests as a participant" in the McConnell case, Abrams wrote, would ensure that if allowed argument time, "would present the Court with a different viewpoint from that of Citizens United."
Abrams also points out to the Court that McConnell's adversaries in the 2003 Supreme Court case, the sponsors of McCain-Feingold, have already sought argument time for former SG Seth Waxman of Wilmer Cutler Pickering Hale and Dorr on the opposing side in the current case, with the support of Solicitor General Elena Kagan. Their arguments for divided or expanded argument time "apply with equal force" to McConnell, Abrams said.
Nothing doing, replies Olson, who claims that McConnell's position will be "adequately represented" by Citizens United. "While Senator McConnell doubtless has familiarity with the case bearing his name, he does not have any specific familiarity with the record of this case," Olson said.
Olson also asserted that neither he nor his adversary Kagan need to have their arguments supplemented by representatives of the sponsors and opponents of McCain-Feingold. "Presumably because it perceives a tactical benefit in doing so, the government has consented to the participation of [McCain-Feingold's] sponsors in oral argument," Olson wrote. "But that in itself should not mandate the equally duplicative, unnecessary, and dilutive diminution of Citizen's United's argument."
A decision on the motions could come as early as Monday Aug. 17. If the motions for divided argument on both sides are granted, it will be a remarkable first day on the bench for new Justice Sonia Sotomayor: Kagan's debut, arguments by former SG's Olson and Waxman, as well as Abrams.
Second time in recent memory Ted Olson has had to fight for sole possession of the podium on his side of a case.
Posted by: anonymous | August 14, 2009 at 07:09 PM