Should Ted Olson Argue in High Court Campaign Finance Case?

Tony Mauro

The National Law Journal

Ever since June 29, when the Supreme Court ordered new arguments in the Citizens United v. Federal Election Commission case for Sept. 9, some lawyers and ethics experts have wondered whether former Solicitor General Theodore Olson, now with Gibson, Dunn & Crutcher, should remain in the case. He argued for Citizens United in the first argument March 24, and let it be known he would play the same role in the re-do.

Questions were raised because the Court, in its order for new arguments, explicitly stated it wanted to consider a new question: whether a portion of the 2003 ruling in McConnell v. Federal Election Commission should be overruled. That's the landmark decision that upheld almost all of the Bipartisan Campaign Reform Act, better-known as McCain-Feingold. And who argued in defense of the law on behalf of the government in the McConnell case? Olson, as SG. Now he is on the opposite side, arguing against the law, and, presumably, the McConnell precedent. Olson was set to file his brief late on Friday.

Legal ethics expert Steve Lubet at Northwestern University School of Law is unsettled by Olson's role, mainly because of the special status of solicitors general. Lubet stresses that there is no ethical bar against a lawyer changing sides, so to speak, in successive cases. "It's not an ethical question," Lubet says.

But Lubet asserts that the solicitor general has a unique responsibility before the high court to "state what the law is -- an objective view of the law" that transcends advocacy. "If an ex-SG basically turns around and says, 'What I said before is wrong, I was just saying it,' he becomes just like any other lawyer. It might chip away at the perceived objectivity of the positions taken by future SGs."

Asked about these concerns, Olson made several points in an e-mail response. For one thing, Olson said, "The way the arguments will be framed, in the context of the facts of this case, and in light of the way the briefs will be structured, this won't be directly opposite a position I took as SG."

Olson added, "This is a legal issue, focusing on the Court's position on a constitutional question, not on the credibility of any of the lawyers ... The SG is obliged in defending an act of Congress to present the most forceful, honest arguments that may be made in support of the constitutionality of the law. The Court, of course, relies on the advocates to present the various views as clearly as possible."

Continuing, Olson said, "The arguments are those of the Government, through the Government's lawyer, the SG. They may or may not reflect the personal views of the SG ... I don't think the Court is looking for the SG's personal views, but for the clearest, most persuasive presentation of the Government's case. As a private lawyer, I am now presenting the most persuasive case I can on behalf of a private client as to the Constitution and law. In this context, the Court will again decide the issues, but I don't think that the justices expect that the lawyers are presenting their personal views. Advocates represent clients. I hardly think that this would undermine the role of future SGs."

This article first appeared on The BLT: The Blog of Legal Times.