Legal Times - September Argument Debut for SG Kagan

July 20, 2009

Solicitor General Elena Kagan plans to make her first argument before the Supreme Court on Sept. 9 in the case of Citizens United v. Federal Election Commission, the so-called "Hillary - The Movie" case. Justice Department spokeswoman Beverley Lumpkin today confirmed reports that Kagan plans to argue the case.

It's the oral argument the Supreme Court ordered as it recessed for the summer, to consider whether Austin v. Michigan Chamber of Commerce and part of McConnell v. FEC should be overturned. The scheduling of the rare summer argument alarmed supporters of campaign finance reform who fear the Court is preparing to overturn the ban on use of corporate or union treasury money for independent campaign expenditures. Briefs on the issues set forth by the Court are due this week.

Deputy Solicitor General Malcolm Stewart represented the government in the first oral argument in March as we reported here, arguing that a movie critical of then-presidential candidate Hillary Clinton that was funded by corporate money should be regarded as an "electioneering communication" regulated under the McCain-Feingold law. Stewart ran into trouble, however, when he seemingly acknowledged that the law could also in theory justify the banning of campaign-related books in some circumstances. That drew dubious reactions from several justices.

In the September argument Kagan will face one of her predecessors: former SG Theodore Olson, now with Gibson, Dunn & Crutcher, who will argue for Citizens United, sponsors of the movie. As SG under President George W. Bush, Olson defended the law he now challenges.