In its brief with the court (pdf), Catholic Answers argues that, in seeking to establish the legality of the group’s claim to tax-exempt status, the IRS has forced the group to continue to refile refund claims for years, effectively postponing a decision in the matter and thereby “chilling speech.”

Tax-exempt nonprofit groups such as churches are barred from performing express political candidate advocacy. They can take up political issues, however, and in championing charged issues like abortion, for example, the line separating advocacy for an anti-abortion position and the Republican Party generally has become thinner and thinner.

Catholic Answers calls itself an “apostolate,” by which it means it is carrying on its educational and evangelical mission with the Church’s blessing, although none of its members are ordained. Established in 1979, the group produces books, magazines, videos and a daily radio show on Church teachings and Church positions on issues of the day.

The group is being represented in its case against the IRS by high-profile religious-right attorney James Bopp, a reported adviser to presidential candidate Mitt Romney. Bopp advised Citizens United in its now-famous campaign finance case. He also defended the national anti-abortion organization Susan B Anthony List in a defamation suit filed by former Congressman Steve Driehaus. Bopp has also served as general counsel for National Right to Life and as special counsel for Focus on the Family.

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According to the Center for Responsive Politics, “organizations not directly affiliated with political parties accounted for $4,503,249″ of the $7,547,465 outside groups spent during the 2010 election cycle.

“We had a 10-year plan to take all this [regulation] down,” Bopp told the New York Times after the Citizens United case. “And if we do it right, I think we can pretty well dismantle the entire regulatory regime that is called campaign finance law.”

His critics agree – Scott Thomas, a former Democratic Federal Election Commission chairman, said Bopp’s cases have almost entirely neutered the Bipartisan Campaign Reform Act of 2002 that was intended to curb the influence of wealthy donors and outside groups.

“We should now call the statute, ‘The Federal Election Campaign Act paid for and authorized by Jim Bopp,’” Thomas told Bloomberg.

On the basis that any regulation of corporate donations is an affront to free speech, the Indiana-based Bopp has filed 21 of 31 lawsuits challenging disclosure limits in states including California, Rhode Island, North Carolina, Montana, Minnesota, Maine, Iowa, Wisconsin, Washington state and Vermont.

In fact, the litigation now pushed by Bopp on the state-level stage often goes beyond Citizens United.

As The Texas Independent reported, the nonpartisan watchdog Campaign Legal Center, commenting on the conservative Texas’s group King Street Patriots (KSP) challenge to the suggestion they need to name their donors, said, “KSP stretches the Supreme Court’s recent decision in Citizens United beyond the breaking point.”

Most recently, Bopp has been working with North Carolina Right to Life to overturn North Carolina’s campaign spending law and with Montana’s American Tradition Partnership to challenge that state’s ban on corporate donations.

“We have been awfully successful,” Bopp said of his nation-wide campaigns, “and we are not done yet.”

Engelbrecht led meetings every week to help see that dream through, she says, and she passed that cowboy hat around. And the speakers who addressed the group — conservative authors, candidates for office around Houston, even congressmen and Gov. Rick Perry himself — inspired such confidence in the cause that she raised $87,000 in that cowboy hat last year.

But Engelbrecht also has a team of lawyers both in and outside Texas hoping to cement that narrative of her and her group, the King Street Patriots, at the very same time they use it to topple Texas’ ban on direct corporate giving from corporations to candidates — an explicit attempt to extend Citizens United to Texas, one of 22 states where those contributions are still illegal.

That’s because King Street Patriots, or KSP — a frequent subject at Texas Independent, recruiter of foot soldiers in the GOP voter impersonation scare — is tied up in an Austin court case, accused by the Texas Democratic Party says the group’s activities leading up to the 2010 election put it outside the bounds of its nonprofit status, and outside Texas election law.

While KSP’s most ambitious efforts focused on training poll watchers — new effort 2012, its spinoff group True the Vote spinoff, hopes to raise $500,000 and train one million poll watchers across the country for the presidential election — it drew a challenge for its habit of attracting Republican candidates to talk party politics and thank supporters for their help, without inviting their opponents.

“King Street Patriots,” said Texas Democratic Party General Counsel Chad Dunn at the time, “evidently believes the law doesn’t apply to them.”

In October, James Bopp Jr. — the architect of the Citizens United case, and an Indianapolis attorney who’s made a crusade of loosening corporate campaign spending laws — told the Texas Independent that, in fact, the law shouldn’t have to apply to them. The limits on corporate spending shouldn’t be on the books at all, he said, because they’re not constitutional.

Bopp, who got his start as a lawyer for the National Right to Life Committee, started the nonprofit James Madison Center for Free Speech with help from Kentucky Sen. Mitch McConnell, isn’t shy about the party politics behind his work.

“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 peoples, so their only recourse is lies,” he told the Independent last fall. “(KSP’s opponents) are trying use Texas law to shut up their opponents, to throw them in jail for talking about issues,” Bopp said.

At the time, he was waging corporate campaign cash battles in at least a dozen states, hoping to extend the corporations-are-people logic of Citizens United to a more fundamental level of law. It wasn’t long before he found his cause in Texas.

KSP already had backing from the Liberty Institute, the family values, pro-Christian legal center based near Dallas, which started off by denying that KSP’s actions were partisan at all. The state Democratic Party wanted a look at KSP’s books, and the group handed over its records, showing they’d taken in around $87,000, which the group said in a court filing came from passing a cowboy hat for donations.

Liberty Institute president Kelly Shackelford said the total “shows what a joke of a lawsuit this is.”

As former Texas Independent editor Patrick Brendel reported at the time:

The Transaction Reports posted on KSP’s website do not list the identities of donors or amounts of individual contributions, but does break out deposits by date. A handful of large deposits account for a significant portion of KSP’s funding, including $15,201 on April 20, $12,150 on June 1 and $7,003 on Oct. 7.

“It strains belief that this group is saying they raised $87,000 by passing the hat at their meetings,” the Texas Democratic Party’s lawyer Dunn said at the time, and the party continued calls for KSP to come out and name its donors, as Texas law requires of political committees.

Instead, KSP went on the offensive. In mid-November, the group filed a countersuit, laced with references to the Citizens United precedent, and numbering the ways in which Texas’ election code is unconstitutional. Among the lawyers listed at the bottom of the suit, along with lawyers in Houston, Austin and at the Liberty Institute, was James Bopp Jr. in Terre Haute, Ind.

The case sitting in the Travis County courthouse before District Judge John Dietz seems to have its bags all packed for a trip to higher courts, and the stakes couldn’t be higher for the campaign cash limits that have for years kept at least some forms of spending in check in the midst of Texas’ big-money politics, and even ensnarled former House Majority Leader Tom DeLay.

“Texas’s general ban on corporate political contributions violates the underlying premise of Citizens United,” KSP’s countersuit argues, because it permits noncorporate groups and individuals to make political contributions, but bans corporations from making the same speech.”

KSP’s countersuit names three sections of the Texas Election Code it says are unconstitutional (here, here and here), first of all, because they open the door to private suits over campaign spending based on language that’s too vague. Phrases like “in danger of being harmed” and “threatened violation” are all terms the suit calls “vague and ill-defined.”

Before the 2010 elections, KSP held candidate forums for Republican candidates — forums some Democratic challengers say they were never invited to join. Republican candidates used KSP’s headquarters as a campaign center. The watchdog group Texans for Public Justice filed a complaint against KSP with the Texas Ethics Commission about in-kind donations worth “what appears to be worth tens, if not hundreds of thousands of dollars.” But the countersuit argues argues the vagueness of the law because “offering a stick of gum” to a candidate could be read as assisting the campaign.

The suit saves its liveliest concerns for the third degree felony charge that comes with violating these laws, and the consequences Texas law provides for whoever has the bad luck of answering for a corporation that breaks the law.

With a prison sentence of two to 10 years, KSP argues, “Texans risk greater penalties for engaging in political speech than for” a number of serious crimes, listed at length for nearly a page but including indecent exposure, drunk driving, forgery and running a brothel.

“Evidently, the Texas legislature feels that the political speech of concerned citizens is on par with the speech of terrorists,” the suit argues, because making a serious terror threat is a third degree felony in Texas too — before helpfully adding that, “Actually, the terrorists have it easier,” because prosecutors must offer proof of their nasty intent.

It’s “cruel and unusual punishment” to send a corporation’s officer to prison for years for violating these campaign laws — a decade in prison for offering a stick of gum! — and yes, by the way, KSP is also challenging the suggestion that it needs to name its donors.

On that point, Bopp and KSP go even further than Citizens United — too far, said the nonpartisan watchdog Campaign Legal Center in a brief filed with the court in September. “KSP stretches the Supreme Court’s recent decision in Citizens United beyond the breaking point,” the center’s lawyers wrote.

“This is just one case in an aggressive nationwide litigation offensive seeking to invalidate a broad swath of state campaign finance laws in the wake of Citizens United,” said Legal Center Counsel Tara Malloy in a statement.

Sticking to the group’s folksy creation story, though, the countersuit says Engelbrecht, and her fellow King Street Patriots are just:

a group of concerned residents from the Houston area who simply decided to get involved in the political process. For so doing, they have been haled [sic] into court. They exercised their First Amendment freedoms reasonably expecting that doing so would not lead to the threat of excessive fines and even criminal punishment.

But Dunn, the Democratic Party’s lead counsel, sees them all in a very different light.

“King Street Patriots is a corporation, and it’s operating in complete defiance of state law,” Dunn said recently. “They operate in a shadow capacity, taking in money from god knows what kind of corporate business and insurance interest, and it’s all designed to try to abate the tide of overwhelming growth and voting by minority population in texas.”

Their next hearing is set for Nov. 8 in Austin, and whether or not it’s the beginning of the end for Texas’ ban on corporate campaign giving, one gets the sense that — even after decades chasing this cause — with eerily similar challenges working through courts in Minnesota, Montana and other states, it’s only the beginning for James Bopp.

Yana Kunichoff contributed reporting to this story.

For more stories in our series “Campaign Cash: Outing the Corporations”, click here.  This report was produced as part of a collaborative investigative effort to expose the influence of corporate money on the political process by members of The Media Consortium, in partnership with the We the People Campaign. To read more, visit CampaignCash.org or follow #CampaignCash on Twitter.

Wednesday, the nonpartisan, Washington-based Campaign Legal Center weighed in on KSP’s counter-claim in court, saying, more or less, they’re not buying it.

“This is just one case in an aggressive nationwide litigation offensive seeking to invalidate a broad swath of state campaign finance laws in the wake of Citizens United,” said Legal Center Counsel Tara Malloy in a statement. “But Citizen United simply does not support the radical result the King Street Patriots and other anti-reform litigants seek.”

In fact, Indiana lawyer James Bopp, the architect of the Citizens United case that created an opening for new corporate campaign spending in federal elections, is representing KSP in the suit, along with the Plano-based Liberty Institute.

While KSP has said its fund-raising activities consist of little more than passing a cowboy hat around meetings, the group won’t disclose its donors until a Travis County court rules on its complaints that Texas’ corporate campaign giving ban violates the First, Eighth and 14th Amendment.

“In this case, KSP stretches the Supreme Court’s recent decision in Citizens United beyond the breaking point in its challenge to Texas’s restriction on corporate contributions and its political committee disclosure requirements,” Campaign Legal Center lawyers write in the brief.

Read the group’s full brief here. The next hearing on that question is set for November 8 in Austin.

Minutes after the brief was filed with the court Wednesday, KSP issued a timely call for volunteers and donations, under the bold headline, “We are under attack.”

Without mentioning the court brief, KSP founder Catherine Engelbrecht complains of “malicious” attacks from the Texas Democratic Party, Americans United, “and a host of other progressive
groups.”

“We’ve grown accustomed to their insults and misrepresentations, but I wanted you to see how these groups use fear and race baiting to raise money against us—money that will drive further attacks,” Engelbrecht writes, referring to an email the party sent Friday asking for donations to fight a “three-pronged GOP attack” on voting rights.

Anti-abortion protesters stand outside the U.S. Supreme Court. (Astrid Riecken/The Washington Times/ZUMApress)

By any objective measure, conservative social interest groups haven’t been big spenders in the recent midterm election cycle. Compared to groups like the U.S. Chamber of Commerce, which plans to spend $75 million dollars, and the American Federation of State, County and Municipal Employees, which brags it will spend even more, anti-abortion groups like the National Right to Life Committee and the Susan B. Anthony List (around $1.5 million each) and the anti-gay marriage group National Organization for Marriage (under $500,000) are relatively small players in the midterm money game.

[Congress1] Yet despite their limited stake, no special interests can be said to have played a greater role in attacking and dismantling campaign finance laws at both the national and state levels than groups like the NRLC and NOM. Frequently represented by conservative attorney Jim Bopp, who also guided the Citizens United campaign finance case to the Supreme Court, groups advocating against abortion and gay marriage have waged a low-grade war on laws restricting their ability to spend money freely in elections since the early 1980s, and their victory in the recent Citizens United ruling has hardly caused them to rest on their laurels.

Bopp indicated his work was far from over after Citizens United, telling The New York Times, “Groups have to be relieved of reporting their donors if lifting the prohibition on their political speech is going to have any meaning.” As the Campaign Legal Center recently documented, these groups are engaged in multiple ongoing efforts in state and federal courts to build upon Citizens United by attacking broad areas of campaign finance law, including “contribution limits, public finance programs, the remaining limitations on corporate and union political activity and most accompanying disclosure requirements.”

“What we’re seeing is the triumph of plaintiffs who’ve discovered the word processing machine,” said Susan Lerner, executive director at the liberal citizen lobby group Common Cause New York, commenting on a spate of recent lawsuits filed by NOM in a number of states (including New York) against laws that demand donor disclosure from groups spending in state elections. “We’ve seen virtually identical lawsuits filed in different states except that the name and number of the statute being challenged is different.”

But if Citizens United served to free every interest group under the sun to spend increased cash advocating for candidates, why is it the social interest groups that have been so aggressive — and so successful — over the decades in bringing about that change? A look back at the long history of claims made by anti-abortion groups (and more recently, anti-gay marriage groups) against campaign finance laws reveals the groups have been aided by their ability to present themselves in court as a more sympathetic plaintiff than, say, the big business lobby. Driven by ideological rather than material interests, they were able to win major victories against campaign finance laws that have, intentionally or not, created opportunities for unlimited spending by some of the largest corporate interests in America.

*****

In the beginning, it looked like Jim Bopp, who set up and maintains a law practice in Terre Haute, Ind., was alone on a fairly quixotic quest. Watergate had come and gone, and the newly amended campaign finance laws restricting contributions and other forms of political activity enjoyed strong support. But groups like NRLC, for which Bopp began serving as general counsel in 1978, chafed under the new restrictions, and it wasn’t long before they got their chance to challenge them.

“Right-to-life groups have done a lot of litigating, but of course the campaign finance laws were directed at them,” said Bopp. “One of the first cases I brought was for a right-to-life group against FEC regulations that would have outlawed voter guides. And right-to-life voter guides were given the credit — or blame, depending on how you see it — for 12 senators being defeated and Reagan being elected and all that. So these groups felt under attack and they fought, and they were very successful at getting that job done.”

Bopp’s claim that groups like NRLC felt singled out by campaign finance laws isn’t without merit. “He tends to work with the so called ‘right-to-life’ and ‘defense of marriage’ groups, and one of the reasons is that issue-specific groups — particularly those that focus on wedge issues — are some of the most harmed by laws restricting their lobbying and political activity,” said John Pomeranz, an attorney at Harmon, Curran, Spielberg and Eisenberg LLP and an expert on the law governing election-related activity by tax-exempt organizations. “That’s because the candidates, at least in the general election, don’t like to take positions out on the extreme on either side, … [and] outside groups, in order to get the message they want out in front of the electorate, need to do so themselves.”

If such groups initially felt cast out of the mainstream, however, they soon caught the attention of a resurgent segment of the Republican Party that advocated a broader agenda of deregulation in all areas, including campaign finance.

“There’s an affinity between conservative Republicans and campaign finance deregulation, which has led to a lot of funding for people like Jim Bopp who already have an ideological agenda,” said Rick Hasen, an elections law professor at Loyola Law School. Indeed, one of Bopp’s greatest sources of funding emerged when Sen. Mitch McConnell (R-Ky.) embraced Bopp and his cause of campaign finance deregulation and helped him set up his own nonprofit litigation center — the James Madison Center for Free Speech — in 1996, on which McConnell agreed to serve as the honorary chairman.

Bopp, for his part, considers himself a advocate first and foremost for the First Amendment, and he argued that any groups, liberal or conservative, looking to restrict free speech will one day live to regret it. “It really does ebb and flow,” he said, “and that’s why people are really mistaken if they think their views on this or that are not under attack now so they can get a partisan advantage by proposing regulations, like Democrats supporting McCain-Feingold to get some advantage and never thinking they’re going to be looking down the barrel of a gun soon enough.”

“I’ve always thought the First Amendment was for everybody,” he added.

Groups like Common Cause, however, which often find themselves arguing against Bopp’s campaign finance challenges in the courts, have a different label for the relationship his clients have formed with Republicans like McConnell.

“It’s an unholy marriage between some politically extreme elements and a very well-financed corporatist push,” said Lerner. Lerner’s group noted in a report, released this week, that when the James Madison Center opened, conservative donors and foundations flocked to the cause. And the Republican National Committee itself began frequently procuring legal services from Bopp, paying his firm approximately $1.5 million in legal fees since 2003.

But while the right-to-life groups’ interests might have become wedded to other conservative causes, they felt comparatively much freer to advocate for campaign finance deregulation than their corporate cousins.

“The large commercial interests know that their position is not popular, and they don’t want to be seen as the forces that break the campaign finance laws,” said Lerner. The anti-abortion groups, on the other hand, feel no such compunction.

When it comes to bringing cases against campaign finance laws, “everybody has their own calculus,” said Pomeranz, “and the factors are, how essential to my ideology is it that this message gets said, how likely is it that someone else is going to say this message, how much resources do I have and what are the downsides?” Compared to a commercial interest like Target, which faced the prospect of an economic boycott earlier this year when its donation to a controversial candidate in Minnesota was revealed, social interests have little to lose.

“I don’t think that a group that as its usual method of operation hangs outside abortion clinics with pictures of fetuses is particularly worried about its image to the greater public,” said Pomeranz.

The campaign finance reform community might revile them for their efforts, but right-to-life groups also cut a sympathetic figure in the courts. “When presenting challenges to campaign finance, ideological groups represent a more appealing kind of plaintiff than a General Motors kind of plaintiff,” said Hasen. As far back as 1986, when the courts decided Federal Election Commission v. Massachusetts Citizens for Life in favor of the abortion rights group and its desire to spend funds from its general treasury, the nature of social interest groups’ cause has played to their advantage.

“Massachusetts Citizens made a distinction between ideological nonprofit corporations and other corporations,” added Hasen. “If you were ideological and [weren’t about making] money, then you were not subject to the rules limiting the spending of general treasury funds on political activities.”

“Voluntary political associations do not suddenly present the specter of corruption merely by assuming the corporate form,” the court ruled at the time. It was a small foothold along the way to future cases won by Bopp in the following decades, which would strike down a different set of prohibitions — many instituted by the McCain-Feingold campaign finance reform legislation in 2002 — on corporate political spending.

By the time the 2008 elections rolled around, Bopp felt the courts were finally prepared to overturn regulations on corporate election spending more broadly, and he advised the conservative (though not social issues oriented) group Citizens United on how to serve as a deliberate test of campaign finance limits. “The reason they didn’t fit under the Massachusetts Citizens for Life exemption is that they took a little bit of corporate money just to lose the exemption and challenge the law,” said Hasen.

When the Supreme Court ruled in Citizens United, conservative social interest groups like the Family Research Council rejoiced, hailing the decision as “a win for free political speech and the right of corporate citizens to join the political process.” Tim Goeglein, vice president of Focus on the Family Action, agreed, arguing that for “organizations like Focus on the Family Action, the family policy councils, all of our allies … this will give us an incredible voice in the great issues of our time.”

The irony of the victory is that it was won by “a small ideological group,” said Hasen, “yet the beneficiary is every corporation and labor union in America.”

The constitutional arguments we’re making do not depend on whether they’re truthful or not, but we are arguing that they are truthful. [...]

Our principle argument against the statue is that the government is empowering itself to decide the truth or falsity of information that’s related to elections. The way they’ve formulated the law is vague and not just related to express advocacy but also issue advocacy, and that’s unconstitutional.

When it comes to truth or falsehood we don’t believe it’s the role of the government to decide that such communications are true or false. That’s different from saying a false statement is protected under the First Amendment, of course, because truthful communications would be subject to the process just as false ones would be — they would be dragged though this whole process as well.

In other words, Bopp says the Susan B. Anthony List’s ads are accurate but the constitutional case he’s arguing doesn’t depend on that fact. SBA List is supposed to produce documents demanded in discovery to the Ohio Elections Commission on Friday, but it’s arguing that the process is onerous and unjust and is asking the U.S. District Court in Ohio for an injunction against the law. It was speculated that the court might decide the case today but it is under no obligation to do so.

Interviewed that year by NPR, the Committee’s attorney, James Bopp — the same James Bopp who drafted the RNC’s “purity resolution” — argued that his group did not believe that disclosure laws were constitutional.

We believe that the U.S. Constitution protects them from having to file that report. The problem is having to file a report at all. To be regulated at all. To be accountable to the government at all.

In January 2009, the Committee filed an amicus brief on behalf of Citizens United, the conservative group that finally won its battle over corporate money in elections this year. I’ve posted that brief below. It’s pretty clear that Bopp’s group, stymied by federal regulations, went dark in late 2008 and turned its fire on the campaign finance infrastructure to make the case that groups buying political ads did not need to disclose their sources of funding. So how did they get off the ground again to run their new ads?

UPDATE: I just spoke with William Peaslee, the attorney who was the registered agent for the Committee in North Carolina. He’s not involved with day-to-day operations, but told me that there was a stay on the Bopp lawsuit until Citizens United came down. And we’ve started to see these ads since that decision came down.

“There is nothing more important for our Party than bringing the truth to bear on the Democrats March to Socialism,” said Jeff Kent, the Washington state committeeman who proposed the resolution. “Just like Ronald Reagan identifying the USSR as the evil empire was the beginning of the end to Soviet domination, we believe the American people will reject socialism when they hear the truth about how the Democrats are bankrupting our country and destroying our freedom and liberties.”

This sort of thing was an issue, if sort of a minor one, in the RNC race that Steele won. At the end of 2008 the RNC conservatives drafted a resolution condemning the Bush White House for the Wall Street bailouts. The resolution, which in its ideological harshness was a big step away from what the RNC usually does, was supported by … Michael Steele. The argument against that resolution was that it would set a dangerous precedent, and that argument doesn’t look wrong today.