IN JANUARY 2008, James Bopp got laughed out of court—literally. The white-haired lawyer from Terre Haute, Indiana, was appearing before a federal three-judge panel in Washington, DC, to argue that his client, a small conservative nonprofit named Citizens United, should be able to air Hillary: The Movie on on-demand TV during the Democratic presidential primaries. Citizens United had produced the film to show that Hillary Clinton was a "European socialist" and ruthless political schemer—a cross between Machiavelli and Lady Macbeth who "looks good in a pantsuit," as Ann Coulter put it in the movie. Also featured was Kathleen Willey, who accused Bill Clinton of hugging and kissing her in the White House—and who suggested in the film that Clinton had helped hatch a plot to assassinate her cat.
The Federal Election Commission (FEC) told Citizens United that it couldn't air or advertise the film during primary season, because it amounted to a 90-minute campaign ad that didn't identify who'd paid for it. In court, Bopp argued that the movie wasn't so different from what you'd see on 60 Minutes, and its creators deserved First Amendment protections.
At that point, US District Court Judge Royce Lamberth laughed out loud. "You can't compare this to 60 Minutes," he said. "Did you read this transcript?"
No one was laughing two years later, when the Supreme Court reversed Lamberth's ruling and adopted many of Bopp's arguments—a decision that wiped out 100 years of precedent in campaign-finance law. Building on a key 1976 decision that campaign spending was a form of speech and therefore protected by the First Amendment, the justices in Citizens United v. FEC extended that protection to corporations. They ruled that corporations (which already are considered "persons" for many constitutional purposes) have First Amendment rights similar to those of average voters, and keeping them from spending money to support or defeat specific candidates is unconstitutional.
Citizens United was the culmination of years of work by Bopp to chip away at the nation's campaign-finance regulations, often via obscure cases no one expected him to win. But Bopp's not done—not by a long stretch. Today, the 63-year-old lawyer is pursuing challenges to dismantle practically every facet of campaign-finance regulation. Taken individually, many of those cases look just as preposterous and doomed as Citizens United did in 2008. But laugh at your peril.
Bopp is leading "a very broad-based litigation assault being waged against both state and federal campaign-finance laws," says Tara Malloy, associate counsel at the Campaign Legal Center, a nonprofit legal organization. Reformers see Bopp as using his clients—often small, mission-driven organizations—to widen loopholes in the law that end up benefiting wealthy corporations and their political allies. Arn Pearson, the vice president for programs at Common Cause, calls him "a straw man for the Republican Party for their effort to dismantle campaign-finance laws."
But as Bopp himself likes to say, the First Amendment is not a loophole. His work highlights the conflicts inherent in trying to restrict the flow of money into the political system without limiting free speech. And in that quest, he's had some unusual allies. In many cases, including Citizens United, advocates from the ACLU, the Reporters Committee for Freedom of the Press, and the AFL-CIO have filed supporting briefs.
The judge in DC may have laughed at Bopp's assertion that the Hillary movie was like 60 Minutes, but in the end, it proved difficult to show that the government has a compelling interest in prosecuting someone for putting a political film on TV. Even Supreme Court Justice Elena Kagan, who as US solicitor general argued the government's case in Citizens United, acknowledged during oral arguments that under the regulations Bopp was challenging, a book about a candidate could theoretically be banned as an illegal advertisement.
But the consequences of Citizens United have gone far beyond protecting books and movies. Because it allowed unlimited corporate spending in elections, groups like Karl Rove's American Crossroads were able to raise and spend hundreds of millions with very little public disclosure (see chart).
Burt Neuborne, a noted civil libertarian and former ACLU official who's filed amicus briefs against many of Bopp's cases, says Bopp is using the First Amendment to create a sort of Wild West system where anyone can spend whatever they please, however they choose. "If you view it as a deregulation device," he notes, "then you've created a power vacuum into which someone will crawl. The people who have moved into the power vacuum in the First Amendment are the rich and powerful."
One thing no one can dispute is Bopp's impressive record in the courts. Even before Citizens United, he'd won a Supreme Court ruling striking down big chunks of the McCain-Feingold campaign-finance law. He was instrumental in Bush v. Gore, and he successfully beat back a massive lawsuit from the FEC alleging that the Christian Coalition had illegally campaigned on behalf of candidates including Oliver North, Jesse Helms, and Newt Gingrich. And now he's pursuing dozens of other cases that, if successful, could eliminate caps on political contributions, allow campaigns to hide their donors from public view, and kill public-financing laws across the nation.
Common Cause's Pearson, who has been litigating against Bopp since the mid-1990s, warns, "In the end, if they are successful, we'll have a system where the wealthiest dominate the campaign completely."