Art by John Ritter (Source Photo: Evan Vucci / AP)
Wedged up against the Illinois border on the banks of the Wabash River, Terre Haute, Indiana, has seen better days. Many factories have closed, and downtown has too many vacant storefronts. But there are signs of activity: Indiana State University has grown, the federal prison still provides reliable jobs-and the ten-lawyer litigation machine that occupies the offices of attorney James Bopp Jr. at the corner of 6th and Wabash is going full tilt.
Bopp is best known as the lawyer behind a case involving a 90-minute film made in 2008 attacking then–presidential candidate Hillary Clinton. Bopp's suit ultimately resulted in the landmark 2010 Citizens United v. Federal Election Commission decision, in which the Supreme Court held that corporate funding of independent political broadcasts such as the movie and its promotional ads were legitimate expressions of free speech and couldn't be limited by campaign-finance laws. The ruling overturned key restrictions on the use of corporate and union money in politics.
Over the past 30 years, Bopp has been at the forefront of litigation strategies that have reshaped campaign-finance law inexorably. Having helped pave the way for spending in the 2012 elections that's likely to exceed the 2008 level by several billions,
Bopp is already well into the next phase of his crusade to topple as many of the state and federal limits on the role of money in politics as can be done in one man's lifetime.
His targets include two of the few remaining bedrock principles of money-and-politics law: disclosure mandates and the prohibition against unions and corporations giving directly to candidates and parties. He's also juggling cases that go after dollar limits on contributions, attack elements of public-financing programs, and chisel away at other facets of the regulatory regime.
Though he's socially conservative and highly partisan, Bopp nonetheless is willing, whenever possible, to find common ground with liberals if it furthers his primary, driving goal: to make the words "Congress shall make no law … abridging the freedom of speech" an insurmountable barrier to regulating money in politics.
Tall, with blue eyes, ruddy cheeks, and, at 63, a full head of longish silver-white hair, Bopp is a third-generation native of Terre Haute; his wife Christine moved there at the age of two. He returned to town after attending law school at the University of Florida and a few years working in Indianapolis. Eager to be active in the conservative movement (he headed Indiana University's Young Americans for Freedom chapter), he soon became general counsel of the National Right to Life Committee. It was a natural evolution: He says he remembers his father, a physician, calling abortion an "unethical" practice. His dad's medical books lined a top shelf in the younger Bopp's room, and the boy would often pull down the one that intrigued him most, on fetology.
Bopp's early work for National Right to Life included filing an amicus brief that urged the Supreme Court to deny a hearing for a man who claimed that, because he'd offered to pay for an abortion for his girlfriend, he wasn't obligated to pay child support. Bopp was also active in two major cases in the early 1980s-defending Akron, Ohio's stringent abortion regulations, which the Supreme Court struck down, and challenging the right of a couple to reject potentially lifesaving medical treatment for their Down syndrome infant, known as Baby Doe, which led Congress to pass the so-called Baby Doe amendment that defined such conduct as child abuse.
Bopp's attention turned to campaign-finance law when the Federal Election Commission (FEC) began investigating the distribution of voter guides by the right-to-life group and others in the 1980 election. According to the commission's rules, such materials weren't supposed to "suggest or favor any position on the issues covered," because this would be tacit support of or opposition to a candidate. In fact, the voter guides were immensely helpful to Ronald Reagan.
Bopp persuaded a federal appellate court to overrule the FEC regulations on First Amendment grounds. Anti-abortion activists, he successfully argued, had a constitutional right to support whatever and whomever they wanted; he also got subsequent versions of the FEC rules overturned. Afterward, Bopp helped two conservative groups fight a Virginia injunction against their voter guides because they hadn't followed state requirements concerning registration and disclaimers. He got the injunction lifted, but just a day before the election.
The lesson, for Bopp, was that politically active groups like the National Right to Life Committee and its state affiliates had to be vigilant about state campaign-finance laws. His work gained notice. In the mid-1990s, Ralph Reed, director of the then-mighty Christian Coalition, asked Bopp to represent the group in an FEC investigation into its massive distribution of voter guides. The agency's subsequent lawsuit accused the group of illegally coordinating its activities with Republicans. The sprawling case covered eight campaigns and three election cycles; according to Bopp, FEC lawyers took 81 depositions. In 1999, a federal judge threw out practically the entire case, saying the vast majority of the group's actions were permissible issue advocacy. This was a huge victory; the regulation of coordination between candidates and issue-advocacy groups was a key element of the prevailing regulatory regime, which dated to the post-Watergate reforms of 1974 and the Court's touchstone 1976 ruling, Buckley v. Valeo.
Bopp's first Supreme Court triumph came in a 2002 decision, Republican Party of Minnesota v. White, that knocked down ethics provisions barring candidates for state judicial posts from giving their opinions on legal or political issues in dispute. White is often blamed, in part, for the escalation in money, TV ads, and vitriol in recent judgeship races.
But the case also reflected Bopp's core First Amendment beliefs. His view is that there's a lot judicial candidates can and should say about themselves, short of promising how they'd vote on specific cases. "It's quite legitimate for people to want to know and take into account and vote against judges who they believe are not using the right values," he told me. Bopp has helped write and vet questionnaires that conservative groups have used to query judicial candidates about, among other things, their views on state court decisions dealing with gay adoption and assisted suicide.
But it's as much his follow-up as the original victory, in this case and others, that has drawn admiring comments from other practitioners. Since the 2002 decision, Bopp says, he's filed perhaps two dozen challenges to state restrictions on judicial candidates' speech to make sure White's message has filtered down. "It's why the ACLU [American Civil Liberties Union] is so powerful," says Bradley Smith, a former Republican FEC commissioner. "The ACLU follows up-it keeps track" of whether prayer is creeping into public schools, for instance. Similarly, Bopp, with his trademark persistence, "has been very good at keeping his eye on the ball" and doing the "unglamorous" work in the trenches. This is an attorney, after all, who tried to apply the Supreme Court's rejection of candidate expenditure limits in Buckley v. Valeo to student council elections. In 2001, he won a case for a University of California, Irvine, student who spent $233 at Kinko's reproducing campaign materials, violating the school's $100 limit. (Later, in a separate case, an appellate court ruled that the educational role of universities trumps students' political-speech interests.)
Another hallmark of Bopp's approach is his willingness to fraternize with those who, given Bopp's political beliefs, can only be categorized as the enemy. Larry Gold, an attorney who represents the AFL-CIO, had watched the FEC's investigation of the Christian Coalition carefully, wanting to ensure that the agency's enforcement of its coordination rules didn't disadvantage unions. Gold called Bopp for lunch, which resulted in an amicus brief from the AFL-CIO supporting the Christian Coalition's position. That brief, Bopp says, likely helped the Christian Coalition with the Jimmy Carter–appointed judge.
In turn, Bopp defended the labor federation and the Democratic National Committee after the FEC investigated whether they had illegally coordinated ads and other activities during the 1996 presidential campaign. The agency had decided not to proceed with a case but then dumped reams of the organizations' internal files obtained during the probe into public view, prompting the groups to file suit. Bopp's amicus brief was cited by the D.C. Circuit when it ruled in 2003 that the FEC had violated the groups' First Amendment protections.
"Bopp was trying to advance a principle with a left-right coalition," Gold says. "He has looked for opportunities to file briefs supporting what would ordinarily be his political adversaries" to further his goals.
The corollary is true, too, according to Smith: "He's not to be suckered into doing something good for Republicans in the short term over advancing longer-term core speech values. He has a principled belief that the system will work better if it's deregulated." Unlike some, Bopp's style is to attack the law, not accuse others of violating it for his own party's gain.
Let there be no confusion, though: Despite occasionally joining with Democrats, Bopp is partisan to the core. Part of the cadre of Republican lawyers swarming Florida in late 2000 to help George W. Bush, Bopp sued in Brevard County to stop the vote recount. He betrays no hesitation when he proclaims, as he did in Texas in 2010, that "the Democrats are all about shutting up their opponents because they have no message. They have nothing they are for that is popular with the American people, so their only recourse is lies."
Bopp's political free-market philosophy, no matter how purely motivated, winds up benefiting powerful interests that tend to favor the kind of candidates he supports.
It helps unions, too, but they can't match the wealth or numbers of the corporate community.
Even within his party, Bopp is seen as ultraconservative. "He's an activist lawyer who comes from the extreme right wing of the Republican Party," says an influential Republican. Bopp's list of clients, past and present, is a who's who of social conservatism: the Traditional Values Coalition, the Home School Legal Defense Association, Concerned Women for America, and the Federation for American Immigration Reform, to name just some.
As a Republican national committeeman, Bopp fought for a resolution requiring candidates to pledge support for at least eight of ten policy positions-being pro–gun rights, pro–Defense of Marriage Act, against Obama's stimulus package, and so on-in order to get party backing. Its litmus-test feel brought the measure's defeat at the Republican National Committee's January 2010 meeting; a far vaguer version was approved. (Bopp had better luck with a resolution calling on Obama and the Dems to "stop pushing America toward socialism and more government control," which was approved.) Bopp tangled with Michael Steele, then the GOP chair, over this and other matters; Steele called Bopp "an idiot" on television after Bopp criticized his re-election announcement.
Perhaps surprisingly, Bopp was an adviser to Mitt Romney in the last presidential primary race; Bopp says he was convinced of Romney's conversion on abortion. This time around, he's not taking sides because, he says, he needs to remain neutral as head of a GOP committee trying to influence how the many Republican debates are conducted. However, three of the attorneys in his office left in 2011 to work for Herman Cain.
In politics and in the legal arena, Bopp is relentless. His favorite account of his M.O. came years ago from a co-counsel, who likened Bopp to the Israeli army: "When they're surrounded, they attack, attack, attack." Recounting this, Bopp points to a pair of two-foot-high stacks of books on the floor by his desk, volumes on military history and strategy with a few recent political offerings mixed in, all of which he says he intends to read. "It's the same turn of mind, military strategy and litigation and politics."
War, of course, needs financiers. Some of Bopp's funding sources are a matter of public record. In some litigation, when Bopp is the victor, the opposing side pays his fees: The White case brought in a tidy $867,000. In addition, the Republican National Committee has paid him more than $1.65 million for work on its behalf since 2003.
The James Madison Center for Free Speech, which Bopp set up in 1997 to help fund campaign--finance litigation, passes through to his firm almost all of the money it receives: Since 2006, the nonprofit has raised $1.88 million, with $1.86 million paid out to Bopp's law practice, according to its IRS Form 990s, and has received contributions from, among others, the Alliance Defense Fund, a conservative Christian, anti-abortion, anti-gay-rights group; the anti-abortion Susan B. Anthony List Education Fund; and the American Justice Partnership, started by the National Association of Manufacturers to further its interests in state-court elections. The National Rifle Association and Christian Coalition were early donors. Betsy DeVos, daughter-in-law of the billionaire co-founder of Amway who, with her husband, is a huge GOP donor, sits on the board. As befits someone who fights mandatory disclosure on behalf of others, Bopp won't reveal his other sources of cash.
But despite his relentless advocacy and frequent successes, other lawyers in the field can be wary of Bopp. He has a reputation for not playing well with others, and he's viewed as something of an unguided missile. His utter certainty that he's right is grating. He can be disdainful with judges (never helpful to one's cause), and other lawyers say they have seen jurists laugh outright at Bopp's strident arguments. His briefs sometimes read like cut-and-paste jobs, occasionally referencing court decisions from a state other than the one where he's litigating-a hazard, perhaps, of churning out lawsuits in volume. His comments on an e-mail listserv of campaign-finance lawyers are often caustic. And a video posted on the Internet shows Bopp's fuse burning short at a University of San Francisco forum last February, where a Common Cause staffer asked whether he had any ties to the right-wing billionaire Koch brothers. Voice rising, Bopp replied: "To my regret, I have never been invited to one of their meetings, nor have I ever talked to either one of them. Ever. About anything. Anything. So your ridiculous, scurrilous attack on them, and on me … is reprehensible."
Another problem: "Most corporate and trade-association clients are not particularly interested in rocking the boat," says Dave Mason, a former Republican FEC commissioner. "They're not interested in being the next Supreme Court test case. That's exactly what Jim is interested in and what his clients are interested in. At times, that's put him at cross-purposes" with much of the D.C. campaign-finance bar.
Bopp's combative side played a role in his relationship with a team of lawyers challenging the historic 2002 Bipartisan Campaign Reform Act, better known as McCain-Feingold-the high point of many years' toil by groups trying to curtail the role of money in politics. The lead plaintiff was Senator Mitch McConnell of Kentucky, a longtime foe of campaign reformers; he and Bopp saw eye to eye on the issue, and McConnell was the honorary chair of Bopp's Madison Center.
The team plotted its legal strategy carefully, though all its members weren't necessarily on the same page. Bopp's relationships with the Washington--based GOP lawyers were frosty; they were mostly pragmatic business conservatives and very much creatures of the nation's capital, while he was the true-believing Midwestern right-to-lifer.
McConnell v. FEC, a mammoth piece of litigation, was cued up to be heard by a three-judge U.S. District Court panel. Then suddenly, Bopp filed a separate challenge to the law on behalf of another group, Hawaii Right to Life, in connection with a special election to replace a deceased congresswoman. He did it without informing other McConnell lawyers or the senator, according to people familiar with the events. The particular facts of the special election case meant that Bopp's Hawaii suit might be heard before the major one, threatening to upend the team's efforts. Bopp was seen as trying to assert himself because he viewed his part in the larger case as insufficient; certainly he was overshadowed by bigger legal fish there, such as McConnell lawyers Kenneth Starr and Floyd Abrams. Other conservative lawyers even tried to enlist the AFL-CIO's lawyer, Larry Gold, to persuade Bopp to cease going it alone. McConnell himself was "incensed," according to lawyers familiar with the events.
As it happened, the Hawaii lawsuit was decided on other grounds; it didn't interfere with the main case. But Bopp was marginalized, and McConnell ended his association with the Madison Center.
The infighting likely had little impact on the outcome of McConnell v. FEC. While the district court declared part of McCain-Feingold unconstitutional, a splintered Supreme Court upheld most of the law. Justice Sandra Day O'Connor, who, in an important case years earlier, had voted against campaign-finance restraints, this time co-wrote the majority opinion with Justice John Paul Stevens, saying that "money, like water, will always find an outlet" and that the government was justified in restricting speech to prevent corruption or the appearance of it.
After that loss, many on Bopp's side were disheartened. Not him; he was busy preparing a case that would become his second Supreme Court victory. Randall v. Sorrell took aim at a Vermont law that limited contributions to candidates to between $200 and $400, depending on the office. The 1976 Buckley decision had upheld contribution limits because of the government's interest in preventing corruption. But Bopp got the Court to rule in 2006 that Vermont's low limits went too far and could prevent challengers from mounting effective campaigns.
Bopp was also working on a case, Federal Election Commission v. Wisconsin Right to Life, Inc., that went back at the McCain-Feingold law, particularly its prohibition on corporations running ads that mentioned a candidate within 30 days of a primary or 60 days of a general election. The ads in question urged Democratic Senators Russell Feingold (no coincidence there) and Herb Kohl to stop blocking votes on President George W. Bush's judicial nominees.
But before the case got to the Supreme Court, the earth shifted in campaign--finance jurisprudence. Chief Justice William Rehnquist died shortly before the court's 2005 term began and was replaced by John Roberts. Though Rehnquist had voted to overturn part of McCain-Feingold, his opinions in this area generally had given some ground to the government's right to regulate. More important, O'Connor, who had voted to uphold McCain-Feingold in 2003, retired in early 2006. Her replacement, Samuel Alito, was expected to be more anti-regulatory.
Bopp argued the case in Alito's first full term. He won 5-4, blasting a significant hole in the law that had been upheld just a few years earlier. The ruling said corporations and unions had a First Amendment right to run issue ads anytime before an election, so long as the ads weren't explicit appeals to vote for or against a candidate.
Bopp, fully aware that the Court's re-composition most likely made a difference for his case, voices contempt for the departed O'Connor, who has said she regrets her vote with the majority in Republican Party of Minnesota v. White, Bopp's case involving what judicial candidates can say. "I came to believe she had no guiding principles," Bopp said. "It was like she decided based upon her gut or her intuition, or what she thought was a just result by some extralegal criteria, and then came up with the legal rationale to justify her view. I'm thankful she's off the Court."
Bopp filed Citizens United v. FEC in 2007-the same year he won Wisconsin Right to Life-on behalf of a conservative nonprofit that wanted to air its anti–Hillary Clinton "documentary" on pay-per-view TV and to run ads promoting the film on regular stations. Clinton was running for president. The case took aim at what remained of McCain-Feingold's prohibition on corporate-funded ads airing just before an election, as it applied to this group and this set of facts.
In U.S. District Court, Bopp lost. His appeal to the Supreme Court was accepted, however, and he began preparing for the big show. It's not unusual for attorneys to seek input from other, like-minded counsel in advance of a major argument, and Bopp held such a conference in a first-floor meeting room at Washington's L'Enfant Plaza Hotel with perhaps two dozen lawyers. When he presented his plan, which relied on language from Buckley that hadn't figured much in the Court's subsequent campaign-finance decisions, "there was a lot of quiet eye-rolling," says one lawyer who attended the meeting. Bopp's theory struck many as misguided, too much of a gamble. Soon after, Citizens United replaced him with Ted Olson, who had argued 50-plus cases in the Supreme Court, including Bush v. Gore.
Bopp was relegated to filing an amicus brief on behalf of some former Republican FEC commissioners rather than standing at the podium facing the nine justices on March 24, 2009. Olson argued that the case could be decided on narrow grounds. Months went by with no decision. Then, an almost unheard-of event: The justices asked the parties to reargue the case the following term, with a focus on whether a portion of the McConnell decision along with another important one dating from 1990 should be overturned. When the 5-4 Citizens United decision was finally issued in January 2010, upholding the right of corporations to fund even explicit ads for or against candidates right before an election, it was a page-one headline--maker, a much broader decision than anyone involved had originally asked for or expected. The New York Times said the ruling was a "sharp doctrinal shift" that would have "major political and practical consequences."
The upshot for Bopp: While he had lost control of the case, he had the last laugh. The result vindicated his arguments. By virtue of his having brought the lawsuit to begin with, he (not Olson)remains the lawyer most frequently identified with it. In addition, his earlier Wisconsin Right to Life case, in which he twice argued before the Supreme Court, is widely seen among attorneys as having cleared the jurisprudential way for Citizens United.
Even before the Citizens United decision came down, Bopp had been working on challenges to two other core precepts of campaign-finance law. One is that, though torrents of money may be flooding the system, there must be disclosure of who's behind it, a principle reaffirmed by the Court in Citizens United. Bopp opposes disclosure even when it's not precisely about money. In a case arising out of Washington state, Bopp argued that the state should ignore its own law and not make public the names of signatories to a petition for a ballot referendum repealing rights of same-sex couples. They faced the threat of harassment, he claimed. On that one, he was flattened by the Supreme Court (Doe v. Reed, 2010) and then by a lower court to which the case had been remanded. He lost a similar argument in California, where he tried to block disclosure of donors to the anti-gay-marriage Proposition 8 campaign and several other cases involving the National Organization for Marriage.
He is not deterred, to the dismay of transparency advocates. By his own estimate, he has perhaps 20 lawsuits going that challenge disclosure requirements. "He's the lord of darkness, really," says Laura MacCleery, a lawyer with the Center for Reproductive Rights. "His whole campaign has been about defeating efforts to make the role of money in politics transparent."
His other line of attack has been on the bar to direct contributions by corporations to candidates and parties, a statute that's been on the books since 1907. Bopp lost a 2003 Supreme Court case in which he tried to get the justices to reverse the ban. But that was before Citizens United. In 2011, a federal judge in Virginia ruled that the more recent case's logic would allow such contributions. The issue was raised by two defendants in a criminal case accused of making illegal donations to Hillary Clinton. Bopp wasn't their attorney, but Judge James Cacheris's words were music to his ears: "For better or worse, Citizens United held that there is no distinction between an individual and a corporation with respect to political speech. Thus, if an individual can make direct contributions … a corporation cannot be banned from doing the same thing."
Perhaps, but a majority of the justices hasn't quite said that, at least not yet. The government has appealed the decision. Bopp, through his Madison Center, is filing an amicus brief supporting the defendants. Separately, Bopp has hopes for a case he argued before the full Eighth Circuit Court of Appeals against Minnesota's prohibition on direct corporate donations as well as its disclosure requirements for independent expenditures. A conflict in the circuits would get the issue to the Supreme Court again.
While the legal terrain going forward is uncertain, the practical effect of Citizens United-followed by an important appellate decision, SpeechNow.org v. FEC-has been momentous: the birth of the super PAC, a political action committee that can take unlimited, but disclosed, money from corporations, unions, and individuals to be spent independently on candidates. Bopp told The New York Times just after the Citizens United decision that "we had a 10-year plan to take this all down"-meaning campaign-finance regulation. He told me that because of super PACs, "we are actually ahead of schedule." (Even so, he now dismisses his remark to the Times as a "quip" and denies ever having a formal plan.) Bopp predicts that total spending for presidential and congressional races in 2012-the first full cycle since super PACs, which are proliferating like an invasive species with no known predators, came into being-will be 50 percent higher than the $5.3 billion spent in the 2008 election because of these new creatures. Bopp has even started his own version, called the Republican Super PAC.
For now, the winds are blowing Bopp's way, in no small part because of the makeup of the current Supreme Court but also because he is so good at seeing and optimizing potentially favorable developments around the country. While polls indicate that the public overwhelmingly disapproves of the Citizens United decision and wants Congress to reinstate limits on corporate and union spending, the current Court seems locked into the Bopp position that such limits violate the First Amendment. The best that reformers have come up with is a complicated bill that would, among other steps, expand disclosure and require more-detailed disclaimers on ads. It passed the House in 2010, before the Republicans took the majority, and has stalled in the Senate, with the ACLU, the AFL-CIO, the Chamber of Commerce, and others opposing it. Democratic senators have also proposed a constitutional amendment to overturn Citizens United, an approach that seems even less likely to succeed.
In the area of campaign finance, it always seems to be one step forward and two steps back-or the other way round, depending on one's perspective and who's sitting on the Court. "My sense of why this issue is so irresolvable is that the tension between constitutional equality and individual liberty is irresolvable," says GOP campaign--finance lawyer Jan Baran. "Should we regulate to equalize resources and make things fair, or should the government not regulate because it interferes with freedom of speech and associational rights?" Layer on concerns about transparency and corruption, and the picture becomes even more complex.
Whether the law swings back or keeps moving on its current path, Bopp will keep at it.
So far, he has notched four wins out of six Supreme Court cases argued and many, many victories in lower federal and state courts.
"He's indefatigable-he has an enormous docket," Gold says. What does Bopp say to those who worry that if money isn't regulated in politics, only those who have it will be heard? Simply this: "There are all sorts of ways for people to become involved in politics. They can volunteer, talk to their neighbors, lead an organization."
That's not a credible assessment of how loudly money speaks in the political process, say Bopp's many foes. If Bopp succeeds in his deregulatory quest, says Paul Ryan, an attorney at the pro-reform Campaign Legal Center, "you'll see the rich people sitting in the front row of the political arena with their bullhorns, and the rest of us sitting in the back with duct tape over our mouths."
