In the world of campaign finance and election law, Terre Haute attorney Jim Bopp is one of the leading legal minds involved in some of the most influential cases in these areas of law.
A landmark decision by the nation's highest court recently gives Bopp a hallmark win, even though he wasn't the attorney
who saw it through to the final stages. The case is now being used in a larger assault that Bopp is waging against campaign-finance
reforms nationally in the name of free speech.
"It's a tough job taking apart campaign-finance regulations, but it has to be done," said the attorney who's been practicing for 37 years. "Our framers said 'you shall make no law' about free speech ... that means no law. But that's now how it is."
The Supreme Court of the United States in January decided a monumentally significant case built on Bopp's mantra about campaign-finance law and free speech, and it's now seen as one of the top two most important campaign-finance decisions in history. This case is viewed by most as Bopp's "brainchild" and one of his victories in his longtime assault on these laws.
In a 183-page ruling Jan. 21, the 5-4 court said corporations have a First Amendment right to make independent expenditures to political campaigns and those contributions can't be limited. The case was Citizens United v. Federal Election Commission, 558 U.S. ____ (2010). While the entities can't give money directly to campaigns, they may seek to persuade the voting public through ads and movies.
The case involved a film produced by the conservative non-profit group Citizens United, which sought to discredit Democrat Hillary Clinton's 2008 presidential candidacy. The U.S. District Court for the District of Columbia ruled the group couldn't broadcast the film because of the federal McCain-Feingold law banning corporate spending for "electioneering communications" in the closing days of an election. But the majority reversed the lower court's judgment in a decision authored by Justice Anthony Kennedy, allowing the practice and also striking down part of 2003's campaign-finance reform.
"If the First Amendment has any force, it prohibits Congress from fining or jailing citizens or associations of citizens, for simply engaging in political speech," Justice Kennedy wrote. "When government seeks to use its full power, including the criminal law, to command where a person may get his or her information or what distrusted source he or she may not hear, it uses censorship to control thought. This is unlawful. The First Amendment confirms the freedom to think for ourselves."
Using rationale from another of Bopp's cases, Wisconsin Right to Life v. FEC, about issue advocacy, the court overturned 1990 precedent from Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990), which had prohibited that kind of campaign contribution. Some questions left unanswered in Citizens United include whether this logic applies to labor unions that have similar restrictions, whether corporations can donate directly to candidates, and whether foreign companies with U.S. operations are also protected by the First Amendment. With this ruling, ccorporations spending more than $10,000 a year on such ads still have to disclose the names of donors who supported them, and those corporations must still reveal who sponsored the ad.
That disclosure issue is a topic in another case that's pending before the Supreme Court and set for argument April 28. Bopp is also leading that one in hopes of striking down specific disclosure limitations.
Justice John Paul Stevens wrote a 90-page dissent that Justices Stephen Breyer, Ruth Bader Ginsburg, and Sonya Sotomayor also joined. Reading part of his dissent from the bench for about 20 minutes, Justice Stevens criticized the decision and said the majority went too far in deciding aspects that weren't at issue.
"The Court's ruling threatens to undermine the integrity of elected institutions across the Nation. The path it has taken to reach its outcome will, I fear, do damage to this institution," he wrote. "Essentially, five justices were unhappy with the limited nature of the case before us, so they changed the case to give themselves an opportunity to change the law."
In the overall picture, Bopp said that it chipped away at precedent set on campaign-finance law in the past three decades.
Almost immediately the critics responded, with President Barack Obama slamming the Supreme Court during his State of the Union address, and Congress soon starting hearings about whether the law should be revised. States are exploring their own laws in response, even as courts continue interpreting the January decision and applying it to other cases. Some Indiana law professors and attorneys say the ruling endangers the integrity of elections by allowing unlimited corporate donations.
Professors say that it could also lead to more problems with financial contributions to judicial elections, a topic that arose in last year's decision in Caperton v. A.T. Massey Coal, No. 08-22. The Citizens United case backpedaled from Caperton, saying that it can't be used to limit money in judicial elections because it applies only to recusals. That issue was significant for jurisdictions like Indiana, which has been faced with legislation in recent years attempting to scrap the meritselection system at certain local and appellate levels in favor of voter elections.
"That's very troubling to those of us concerned about the explosion of money in some judicial races," said election law expert Rick Hasen, a professor at Loyola Law School Los Angeles who runs the Election Law Blog. "Whether it will actually spur jurisdictions to abandon such elections in favor of something else, like merit selection followed by retention election, remains to be seen. But it's really hard to convince people they should give up their right to vote for someone or something."
Notre Dame Law School professor Lloyd Mayer said many states including Indiana don't restrict corporate spending and so this doesn't have an immediate impact. He does worry about the impact on judicial elections in the wake of the ruling because it might motivate more companies to get involved. That could lead some judges to campaign more when faced with spending by corporate or union interests wanting to influence who's on the bench, he said.
"They will have to convince more people to contribute, without compromising their being a judge. That's a fine line to walk," he said. "The ripple effects will continue for a decade as this plays out more."
Bopp, who's initiated litigation aimed at scrapping merit selection in some places nationally, said he doesn't see any reason this wouldn't apply to judicial elections because it involves the same First Amendment and Constitution. It's not clear what impact this will have on that effort, he said.
Describing dissenters as part of the "reform industry" bent on limiting speech in order to drown out opposing views, Bopp said Citizens United proves that corporations and labor unions can't be singled out and prohibited from being a part of the process like regular citizens.
While he believe that some limitations on contributions should be allowed, Bopp said that he doesn't see this leading to a floodgate of corporate donations into the political arena. If companies start picking and supporting candidates, that will alienate people and shareholders, he said, and that's a good reason to not get involved. But the corporations, unions, or citizens groups still have the right to do that if they want to.
"There can't be blanket restrictions that go against equal protection," he said, referring to campaign contributions and political free speech protection. "Prior approval is prior restraint, and the only way the government can justify doing that is if the FEC had won on Citizens. They didn't. We did. The government must treat all speakers the same, and it can't discriminate if it doesn't like the speaker or the message. This Supreme Court takes the First Amendment seriously, and says these kind of contributions to the political system aren't evil."
The Citizens United case is just one of the pieces in a larger puzzle, Bopp and others say. Washington, D.C.-based appellate attorney George T. Patton, with Indianapolis-based Bose McKinney & Evans, described Citizens United as being monumentally important and said the battle that Bopp is waging against campaign finance and other issues is dangerous.
"The importance cannot be overstated," he said. "What lawyers and people need to do is think about the world in which Jim Bopp envisions: judicial elections with limitless contributions, judges campaigning endlessly and personally soliciting contributions and seeking endorsements from corporations, and them ruling from the bench while actively involved in partisan activities. ... That's not a pretty picture."
Bopp has handled about 100 campaign-finance law cases nationally in 45 states since he started this campaign in about 1984 - about 20 have been against the FEC while the rest involve states and cities. Most are free-speech challenges referred from his 13-person firm of Bopp Coleson & Bostrom that also constitutes the James Madison Center for Free Speech, a political litigation arm reaching across the country. Those fit with his client roster that through the years has included the National Right to Life Committee and Focus on the Family, and likely what earned him the honor of being named the Republican National Lawyers Association's Republican Lawyer of the Year in September, for his work on conservative and GOP causes.
Bopp has several cases ongoing nationally about free speech and elections, such as Torrey v. Bauer pending in the 7th Circuit Court of Appeals about judicial election questionnaires. The SCOTUS plans to address the disclosure element of campaign-finance law when it hears one of Bopp's cases in April, involving the public release of the names and addresses of people voicing opinions on political issues.
"In a short period of time, we're dealing with issues that are showing a significant peeling back of support for campaign-finance laws," he said. "We're moving dramatically in favor toward what the framers had in mind."