Ideological organizations often make for more sympathetic plaintiffs than business groups, and they’ve had considerable success in striking down campaign finance restrictions.
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.”
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