Karl Rove is an inviting target for Democrats, and after founding American Crossroads, the Republican strategist has become a bogeyman and the representation of shadowy corporate interests from whom he raises money.
But the man most responsible for the way campaigns and elections are financed in America is not Rove. He is not a member of the Federal Election Commission. He is not a senator or a representative. In fact, he doesn’t even live or work inside the Beltway.
Instead, Jim Bopp operates a law firm and a think tank out of Terre Haute, Ind., where for more than a decade he has developed the legal strategy that has systematically undermined campaign finance reform legislation, allowed for a massive influx of barely regulated money into the system and infuriated groups that press for more disclosure from candidates and their campaigns.
Virtually every major legal battle that has shaped campaign spending in the last decade has centered around Bopp’s strategy. He spearheaded the legal challenge to a Vermont law that placed stringent limits on donations to political candidates, a law the Supreme Court struck down in 2006.
Bopp helped popularize the use of Section 527 of the federal tax code, which allows organizations to raise and spend unlimited amounts of money on so-called issue ads. He defended Wisconsin Right to Life, an outside organization sued by the FEC for running those advertisements in the weeks leading up to the 2004 election, an argument with which the Supreme Court agreed.
And in 2007, he brought a lawsuit for Citizens United, a case that eventually allowed outside organizations to raise and spend millions in unregulated corporate cash to influence the outcomes of elections.
“For better or worse, Jim Bopp has been at the center of most of the big fights that have taken place over the last two decades involving campaign finance reform and review of campaign finance regulation,” said Marc Elias, an attorney at Perkins Coie, whose practice represents major Democratic causes in Washington.
Every time one of Bopp’s lawsuits succeeds, he sends Democrats scrambling to catch up. After the Supreme Court ruled in his client’s favor in the Citizens United case, for example, Republicans quickly launched American Crossroads and other outside groups, which were much more successful in raising big bucks than their Democratic counterparts.
So far, Bopp has helped deconstruct legal barriers to political speech; the decisions in which he’s been involved have centered on who may spend money on campaigns, and how much they may spend. And the Supreme Court, especially under Chief Justice John Roberts, has proved a willing ally. But Bopp’s latest project is far more ambitious: He’s tackling barriers that prohibit outside groups from coordinating with the candidates they are trying to elect.
Last month, Bopp and two fellow members of the Republican National Committee said they would form the Republican Super PAC, an independent expenditure-only organization that will raise and spend money for conservative causes. What makes the PAC different, though, is that Bopp hopes to enlist members of Congress to raise money.
That, campaign finance reform proponents say, runs afoul of rules that prohibit coordination between campaigns and the outside organizations who seek to influence voters. But the FEC has yet to weigh in. Democratic operatives running a super PAC have asked for a formal opinion as to whether or not such fundraising practices are legal—a sign, Bopp says, that the other side is desperate to copy his tactics.
“Democrats want very badly to do this, have publicly acknowledged that, and recognize that it is legal in all its aspects, except for whether federal candidates can solicit contributions to the Super PAC,” he said. “Through the advisory opinion request, the Dems can get the desired reassurance on the one remaining question.”
Bopp is by no means a Washington insider. Though he is a member of the Republican National Committee, Bopp doesn’t have a stable of Republican members of Congress as clients, and he’s not a fixture in establishment Republican legal circles. And some in the legal community believe now is the wrong time for an assault on coordination rules; current law, as it stands, benefits Republicans. If coordination laws are stripped away, Democrats may be the ones that benefit, given they have someone, in President Obama, whom Bopp calls “the most effective candidate solicitor on the planet.”
What’s more, outside groups are able to run hard-hitting negative advertisements without reflecting poorly on the candidate they support. If coordination barriers break down, the candidates may be at risk of being associated with those harshly critical ads.
Bopp’s crusade speaks more to the state of the campaign finance debate than to any one approach. The debate is centered entirely around what aspects of the law are next to be challenged in court; absent is any discussion of legislation instituting new reforms as a response to the high court’s decisions. The FEC, meanwhile, is mired in deadlock broken only rarely, and usually to dismiss a complaint.
So super PACs, like 527 groups and late electioneering communications, are here to stay, and Democrats are adapting to the new reality. What comes next will add another layer to the legacy of a single lawyer in Terre Haute.
This article appears in the June 2, 2011, edition of NJ Daily.