After victory, conservatives mount new challenges to campaign finance limits

By Tomoeh Murakami Tse
Washington Post Staff Writer
Friday, March 26, 2010

In a small office overlooking Indiana's Highway 40, James Bopp Jr. is preparing a nationwide assault on campaign finance regulations.

For decades, Bopp, the vice chairman of the Republican National Committee, has fought restrictions on political spending, seeing them as an affront to free speech, and he was the force behind a recent Supreme Court ruling freeing corporations and unions to spend as much as they want on political ads.

Far from resting on his laurels, Bopp has expanded his staff of lawyers and spent the eight weeks following the high-profile decision arguing to judges across the country that various other regulations governing local and federal elections are unconstitutional. His team is also keeping a close eye on efforts by states, Congress and shareholder groups to counter the Supreme Court decision, criticized by President Obama as a move that would "open the floodgates for special interests."

"Citizens United is going to have a very substantial impact," said Bopp, referring to the case decided by the nation's high court. "Obviously, we're encouraged that we're on the road back to restoring the First Amendment application to campaign finance."

Using a team of 15 lawyers, Bopp is determined to continue chipping away at established campaign finance law; he has 27 cases pending in various courts. Last month, Bopp won a preliminary ruling from a federal judge blocking several San Diego election laws, including a limit on contributions to independent political committees that oppose or support candidates in that city's municipal elections. The judge cited the Supreme Court's decision in her own decision, the first ruling in a campaign finance-related lawsuit to come down following Citizens United v. Federal Election Commission, according to lawyers for both sides.

Bopp is also awaiting word from the federal court in the District on a challenge to the "soft money" provisions in the 2002 McCain-Feingold law that prohibited political parties from accepting unlimited contributions from individuals, companies and unions.

Lawyers for the Federal Election Commission argue that Citizens United should not affect the soft money case, in part because the Supreme Court decision addressed the limits on spending by groups, not how much individuals and companies can give.

"These cases are not directly on point," said Tara Malloy, associate counsel at the Campaign Legal Center. "The reasoning of Citizens United is being used to strengthen cases even about different and disparate cases."

Bopp is hardly alone in his effort. Various groups opposing campaign finance restrictions have lined up behind cases advocating further deregulation, emboldened by the victory of Citizens United, a conservative group that was behind a film critical of Hillary Rodham Clinton called "Hillary: The Movie."

A nine-member federal appeals panel in the District is expected to rule soon on a case brought by SpeechNow, an independent political group arguing that it should not be subject to a $5,000 annual limit on donations from individuals. The group, founded by David Keating, the executive director of the conservative Club for Growth, plans to run campaign ads in multiple districts for "pro-free speech" candidates in this year's midterm elections if it is successful in court.

"Citizens United said that corporations can spend unlimited amounts of money on independent expenditures. SpeechNow is going to decide, is that true for everyone else?" said Bert Gall, a senior lawyer at the Institute for Justice, which is representing the plaintiffs. "SpeechNow, if it wins, will kick down the doors for all groups, not just corporations."

With so many cases up in the air, election experts say it is hard to predict the impact of the Supreme Court decision in the short term.

But Democratic lawmakers, fresh from passing the health-care measure, one of the most controversial pieces of legislation in recent sessions, are not waiting until the fall elections to find out.

Legislation has already been introduced to require companies to put up for shareholder approval any political contributions made from corporate coffers. Sen. Charles E. Schumer (D-N.Y.) and Rep. Chris Van Hollen (D-Md.) are expected to introduce a bill after Congress's spring recess that includes a requirement that corporate chief executives appear on camera in political ads to declare that they approve of their content. It would also seek to prevent companies who do business with the government from spending money on elections.

Bopp, for his part, promises a battle if Congress passes any such measures. Imposing regulations on a corporation's ability to engage in independent spending is unconstitutional, argues Bopp, who also pointed to a case before the federal appeals court challenging contribution limits that are significantly lower for people doing business with New York City. That case, which was put on hold pending the Supreme Court decision, is now moving forward, Bopp said.

"Citizens United holds that you can't discriminate among speakers," Bopp said. "And they are."

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