Citizens United v. the FEC: The Return of Corporate Influence Peddling?
Jan. 13, 2010 — -- The hotly anticipated Supreme Court case that could open the door to a flood of corporate money in political campaigns represents the latest thrust in a patient, carefully orchestrated bid to use legal challenges to undo the restrictions passed by Congress.
The opinion on the case brought by the conservative advocacy group Citizens United is overdue and today was pushed back by at least another week. Election lawyers say it could have broad implications for the way cash flows into mid-term congressional elections that are gearing up now.
The case is just the latest of dozens of legal challenges brought over the past eight years that have been financed by major Republican donors and interest groups. Most of the cases have been designed to chip away at the landmark bipartisan law carried through congress in 2002 by senators John McCain, R.-Ariz., and Russ Feingold, D.-Wisc.
Funding for the effort has come in part from the Dick & Betsy DeVos Foundation, the Charlotte & Walter Kohler Foundation, and the Roe Foundation , all of which have handed out millions to conservative causes in recent years.
The lawyer who has handled the bulk of the cases is a Republican National Committeeman from Terre Haute, Indiana, James Bopp Jr. Citizens United, which hired Bopp in this latest case, is a conservative advocacy group that has produced searing documentaries aimed at Democrats. It was one of these, called "Hillary The Movie," that gave rise to this court challenge, which explores whether the government can restrict when the movie airs, or force the group to reveal who financed it.
"It's very clear that there is a coordinated effort going on to looking for each and every venue and each and every issue, to go shopping for cases and for friendly circuit courts, because they feel if they can get these questions to Supreme Court, they like their chances," said Meredith McGehee, who as policy director for reform-minded Campaign Legal Center has regularly fought these battles. "Jim Bopp is at the heart of it."Bopp has quietly become one of the most influential figures in the world of campaign finance, having played a central role in the slow but steady dismantling of the current election restrictions.
Bopp launched the initial series of legal challenges to McCain-Feingold on behalf of Republican Sen. Mitch McConnell. In 2007, Bopp won a case before the Supreme Court on behalf of Wisconsin Right to Life that shredded one provision of the McCain-Feingold law, undoing limits on attack ads that are dressed up to look like commercials about policy issues. And he has three more cases in the pipeline aiming carefully crafted legal arguments at other core elements of the federal finance laws.
Bopp touts his efforts on the web site of a group he helps run, the James Madison Center for Free Speech.
There's no question, he told ABC News, that he is sought out by clients who feel their efforts to join the rough and tumble of electoral politics are being improperly hindered.
"I represent a lot of clients who want to participate in our Democratic process," Bopp said. "They want to participate, and then they run up against the Federal Election Campaign act."
Bopp's effort to help these clients has come in the form of nearly two dozen challenges to Federal Election Commission regulations, and more recently in the marquee cases he has tried to shepherd to the U.S. Supreme Court, which in recent years has seemed to be a more friendly venue for his cause.
"We're peeling back quite a few of these regulations and limiting their scope," Bopp noted.
Bopp's efforts have attracted support from conservative luminaries and wealthy GOP patrons. Tax records show the board of the James Madison Center has received at least $95,000 from the DeVos Foundation, $300,000 from the Kohler Foundation, and $170,000 from the Roe Foundation. Among its board members are David A. Norcross, who has served as the Republican Party's general counsel, and former Michigan Republican Chairwoman Betsy DeVos, whose husband ran for governor and chairs the DeVos Foundation. In a 1997 column in Roll Call that challenged the wisdom of McCain-Feingold, DeVos described her family as "the largest single contributor of soft money to the national Republican party." Dick DeVos is the son of billionaire Amway founder Richard DeVos, while Betsy is the sister of Erik Prince, president of the company once known as Blackwater, now known as Xe.
Bopp has also had help from the U.S. Supreme Court itself. While he helped initiate the case brought by Citizens United, it was the Justices who asked the attorneys to expand its scope and scheduled a second set of arguments in September.
"In my view this case was literally put on the table by the justices," said Fred Wertheimer, one of the architects of the McCain-Feingold law.
When Citizens United was called back to argue the case a second time, they brought in former solicitor general Ted Olson to argue the case. Bopp watched from the gallery.
What is clear even before the court rules on the case is that the legal battle is far from over.
Democrats said Tuesday they are already deeply involved in planning for a legislative response, should the court ruling undo longstanding restrictions on corporate and union spending on television ads during the closing weeks of a campaign.
ABC News has learned that Rep. Chris Van Hollen, a Maryland Democrat, and Sen. Chuck Schumer, D.-N.Y., have been talking with the White House and top Democratic election lawyer Marc Elias to plot out possible remedies that they can try to move through Congress in advance of the 2010 midterm elections.
"The risk here is that the decision will open the political floodgates to unrestricted special interest and corporate money," Van Hollen said. "If that's the case there will be a swift legislative response."
Bopp said he relishes the fight.
" In the face of the First Amendment, which says Congress shall make no law, there are a thousand pages of regulations," he said. "People run up against it all the time. In my view, they can either knuckle under or take a stand and sue."
