It’s a Small, Small (Legal) World

Disney or the legal world?

It’s easy to think, when thinking about legal challenges, that there are a seemingly endless number of lawyers in our country.  It’s just as easy to assume, even when winnowing the list down to the “super-lawyers,” that one would still be left with many lawyers from which to choose.

But, as shown in one simple example from this week, the numbers quickly converge into a shockingly few lawyers.  The reargument of the Citizens United v. Federal Elections Commission campaign finance case this week featured some of the top lawyers in the nation, including three who had served as the U.S. Solicitor General — Elena Kagan, Ted Olson and Seth Waxman.

Olson, of course, has been a regular topic of discussion here at Law Dork, having earlier this year brought Perry v. Schwarzenegger, the pending federal court challenge to California’s Proposition 8 — which resulted in a constitutional ban on same-sex marriage in the state.  In Citizens United, in which the Court is considering the permissibility of restrictions on certain corporate spending in political campaigns, Olson is representing the corporate entity, Citizens United, seeking to have the restrictions overturned.

What most people didn’t realize is that the primary lawyer for the Proponents of Proposition 8 in Perry, Charles Cooper, also played a key role in Wednesday’s Citizens United argument — and perhaps in the outcome to the case.  In Citizens United, Cooper is representing the National Rifle Association, which submitted an amicus curiae (friend of the court) brief in the case.   As Tony Mauro detailed at the Blog of LegalTimes, the NRA generally agreed with the broad goals of Citizens United at overturning the campaign finance precedents permitting corporate spending restrictions, but . . .

Cooper also suggested a more limited alternative that caught [Justice] Stevens’ eye: reversing those precedents only to the extent that they permit the government to restrict campaign spending by non-profit advocacy groups — like the NRA, he said — that use individual donations to fund political speech. That would have the effect of striking down the so-called Wellstone Amendment in the McCain-Feingold law, which included such non-profit groups in the ban on campaign spending.

This “narrow solution” for the case — since Citizens United is itself a nonprofit corporation — was picked up throughout the argument by Justice Stevens, at one point forcing Olson into a similar position as that he’s found himself in during hearings for the Proposition 8 challenge: opposing Cooper.  More, from Mauro, reporting on Stevens’ questioning of Olson about Cooper’s NRA “narrow solution”:

“It would not solve the problem,” said Olson, adding that even without the Wellstone Amendment his client might still be covered by the law. To nail down the point, Stevens persisted: “You do not endorse the NRA’s position?” To which Olson replied, “No we don’t.”

As with lots of big questions and big issues, it’s remarkable to me how few people really find their way to the front and center of the debate.  From campaign finance to LGBT equality/discrimination — two major issues with little if anything in common — Cooper and Olson are two of the very select few with seats in the front row of the fight.

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