Why the 2012 Election Will Cost $6 Billion

Source: Business Week

The 2012 election is shaping up to be the most expensive ever, by a lot. Between congressional contests and the Presidential campaign, the 2008 race came in at about $5 billion. This go-round is on track to exceed $6 billion, thanks in large part to recent court decisions that relaxed limits on corporate and union spending. All that money sloshing around—much of it hard to trace to the giver—infuriates government accountability groups. But it absolutely delights the man most responsible for making it happen: James Bopp Jr.

Never heard of him? The 63-year-old proprietor of a small law firm in Terre Haute, Ind., Bopp is far from a household name. In Washington, though, he is revered by campaign fundraisers for his three-decade-long crusade to eliminate restrictions on political contributions, which Bopp, a conservative Republican, sees as a violation of free speech. It was Bopp who filed the initial Citizens United v. Federal Election Commission lawsuit that ultimately led the Supreme Court to rule, in 2010, that corporations and unions could spend unlimited amounts to support or oppose candidates as long as they didn’t give the money to the candidates themselves.

Over the years, Bopp has filed numerous lawsuits in state and federal courts seeking to knock down fundraising limits, always on the lookout for test cases that could one day end up before the justices. He filed 21 of the 31 lawsuits challenging campaign finance regulations tracked by the Washington-based Campaign Legal Center. His work cleared the way for the creation of so-called Super PACs, independent campaign fundraising groups that amass unlimited donations. These PACs are now at work raising tens of millions of dollars from labor, business, and individuals to support—or attack—Presidential candidates. Bopp’s advocacy led to the end of state restrictions on spending in judicial elections and to the repeal of state laws providing additional public funds to candidates whose opponents spend more.

His latest mission: challenging state and federal laws that bar corporations from donating directly to candidates. The way Bopp sees it, if companies can spend money to elect or defeat candidates, why shouldn’t they be allowed to donate directly to the politicians? “The only justification for contribution limits is the size of the contribution, not the contributor,” he says. The point of the First Amendment is “to ensure robust participation by citizens,” he adds. “If you want people of average means to participate, you have to protect groups,” including corporations owned by stockholders.

To that end, on Sept. 21 he argued a case in a U.S. appeals court to overturn a Minnesota state law banning corporations from donating to candidates. In a separate case, a federal judge in Virginia recently cited the Citizens United case in throwing out the federal prohibition on company contributions. Bopp has filed a brief in support of the judge’s ruling, which is now on appeal. No matter how the courts decide these cases, the issue of corporate contributions may eventually end up before the high court—where, as Citizens United demonstrated, his argument could find a receptive audience. “I don’t think anybody has a better track record at identifying test cases and investing in them than Jim Bopp,” says former FEC Chairman Michael E. Toner, a Republican who specializes in election law at the Washington law firm Wiley Rein. “These cases can’t reach the Supreme Court unless someone invests in them at the trial level.”

In his polo shirt and khakis, Bopp does not exude the typical power-lawyer vibe. The desk in his storefront office is piled high with papers he hasn’t gotten around to filing. But his effectiveness in the courtroom is undisputed. “It’s safe to say that groups on the left and right have Jim Bopp to thank for their newfound freedom,” says Sheila Krumholz of the Center for Responsive Politics in Washington. The research group, which tracks political contributions, says independent groups spent $69 million to influence the 2006 midterm elections. In 2010, after the Citizens United decision opened the door to corporate and union cash, it ballooned to $305 million.

Scott E. Thomas, a former Democratic FEC chairman now with the law firm Dickstein Shapiro in Washington, agrees Bopp has been extremely effective. But Thomas is not applauding his success. Like other supporters of restrictions on corporate and union contributions, he says that despite the desire to promote free speech, Bopp is actually helping monied interests drown out the voices of regular people. Bopp, he says, has all but gutted the 2002 campaign finance law intended to restrain the influence of corporations and wealthy donors. “We should now call the statute ‘the Federal Election Campaign Act paid for and authorized by Jim Bopp,’” says Thomas. “He keeps coming back and back and back.”

That’s exactly Bopp’s strategy. Instead of mounting an assault on an entire statute all at once, he tends to tightly focus his cases in hopes of eliminating one provision within the law. He then comes back later to attack another part, chipping away at the whole over time. He got his start in 1978 as a 30-year-old lawyer for the National Right to Life Committee, where he helped the anti-abortion movement incrementally challenge abortion rights laws—a tactic he later adapted to campaign finance. His first challenge to campaign regulations was a case in 1983 that overturned FEC limits on voter guides, such as those National Right to Life once distributed in churches. He argued the recent Minnesota campaign case on behalf of an anti-abortion group, Minnesota Concerned Citizens for Life, claiming it should be allowed to give money to candidates. Bopp set up the James Madison Center for Free Speech in 1997 to collect donations to support his work.

Bopp has turned down offers to close up shop and sign on with powerful, big-city firms. He has no interest in leaving Indiana, where he was born and serves as a Republican National Committee member. “We thought it was a more culturally conservative area to raise our children, and we weren’t forced to move because clients were willing to come to me in Terre Haute, even though they were in D.C. or other places.”

These days, plenty of people seek him out. “Jim had been a lonely guy out there, litigating and litigating,” says Bradley Smith, a Republican former FEC chairman who founded the Center for Competitive Politics, which is critical of campaign contribution limits. “I don’t think Jim is as lonely as he used to be.”