Like Citizens United, Doe v. Reed was on its face a minor, perhaps even trivial case. But it was part of a broader strategy Bopp has pursued for many years and across multiple lawsuits, arguing that people who support or donate to political campaigns have the right to keep their activities private.
Indeed, the Supreme Court has said in the past that political groups can keep their donors' names secret if there's a serious risk of retaliation or violence. But the court has also clarified just how bad the harassment has to be, in a 1982 decision involving the Socialist Workers Party.
During oral arguments in the "douche-bag" case, Justice Antonin Scalia essentially told Bopp that his clients needed thicker skins.
In the thick of the Cold War, the SWP was not popular. People shot bullets through the windows of its offices in Ohio. Disclosure of party membership got teachers fired from their jobs. Party members were harassed by the police and the FBI, which surveilled them for years. So far, Bopp has had a hard time proving that any of the anti-gay marriage donors or petition signers have endured such suffering.
During oral arguments in the "douche-bag" case, Justice Antonin Scalia essentially told Bopp that his clients needed thicker skins (PDF). "Democracy takes a certain amount of civic courage," he said. "The First Amendment does not protect you from criticism or even nasty phone calls when you take part in the legislative process." In one of Bopp's few recent losses, the court last year ruled 8-to-1 that disclosure does not violate petition signers' First Amendment rights. In a concurring opinion, Scalia wrote, "For my part, I do not look forward to a society which, thanks to the Supreme Court, campaigns anonymously...This does not resemble the Home of the Brave."
The dressing-down hasn't deterred Bopp: His firm has filed several other cases that challenge state laws requiring political groups to register with the government and disclose their donors. "For decades, disclosure laws had been somewhat sacrosanct," notes the Campaign Legal Center's Malloy. "Even those who disliked reform were supportive of transparency." But now, 16 states from Maine to California are facing attacks on their disclosure laws, mostly from cases involving Bopp.
This shotgun approach to legal strategy is part of what's made Bopp so successful. The sheer number of cases raises the possibility that the appellate courts will rule differently on similar issues and create a split in the circuits, one of the key factors the Supreme Court uses when deciding whether to hear a case. "Of course the NAACP would tell you, this is how they won Brown [v. Board of Education]," Bopp says.
To that end, no campaign-finance limit seems too piddly for Bopp to take on. In 2004, he represented Aaron Flint, a student at the University of Montana who had violated the school's $100 limit on campaign expenditures. When the school refused to seat Flint in the student senate, he sued, alleging that the rule violated his free speech. Bopp took the case all the way to the Supreme Court, which declined to hear it.
Contribution limits are among Bopp's favorite bêtes noires: "You can't even buy a Democrat in Congress for $2,500," Bopp says with a cynical laugh.
The case was hardly a moneymaker for Bopp, and it offered no possibility of creating new precedent outside of student elections. But as someone who'd run for office in college, he was sympathetic. He thinks contribution limits in campus campaigns don't prepare students for real-world politics and are designed to "turn out a bunch of McCainiacs" who believe the government has the right to restrict political spending.
Contribution limits are among Bopp's favorite bêtes noires: "You can't even buy a Democrat in Congress for $2,500," he says with a cynical laugh, referring to the federal limit for contributions to individual candidates. "It's way too low." A politician who's amenable to corruption, he says, will demand a lot more. The freezer of former Rep. William Jefferson held some $90,000 in ill-gotten cash, and former Rep. Duke Cunningham took more than $2 million in bribes. "He had a list, remember?" Bopp notes, recalling the chart that indicated how much companies would have to pay Cunningham to get a federal contract earmark.
Besides, Bopp argues, contribution limits are counterproductive. People committed to spending serious money on an election, he says, will find a way—and chances are it will be less transparent than contributing to a campaign outright. "At least with a political party, their name is on the ballot," he says. "But a 527? There's no way to punish them."
Bopp should know; he started one of the first 527 groups (a type of campaign organization not subject to most disclosure rules) in 2000 with former Rep. Tom DeLay, who was sentenced to serve three years in prison for illegally plotting to funnel corporate money to campaigns. (DeLay is out on bail while his case is on appeal.)* Coincidentally, one of Bopp's many current cases seeks to open the door to direct corporate donations to candidates—which would make what DeLay did legal.
In his quest to end contribution limits, Bopp has filed a host of lawsuits from New York to Hawaii, and he's scored at least one major victory. In 2006, Bopp represented the Vermont GOP in a Supreme Court case challenging the state's contribution limits, then $200 to $400 per election cycle, among the lowest in the country. During oral arguments, Justice Scalia said, "When you say, 'You can't spend more than this on your campaign,' you're saying, 'You can't say more than this.' When you say, 'You don't need any more speech than this,' that's an odd thing for the United States government to say." The court threw out Vermont's law, and the state reverted to the old limits of $1,000 for an individual candidate and $2,000 for a PAC.
Bopp's contribution-limit cases haven't gotten much attention, but they are laying the groundwork for an even bigger Supreme Court challenge that has the potential to upend what's left of the nation's post-Watergate campaign-finance reforms. For if spending equals speech, as the court reiterated in Citizens United, a pure First Amendment argument would suggest that there should be no donation limits—at all.
Bopp goes back and forth on whether he's ready to make that extreme argument. "I wax and wane over contribution limits," he says. But he hasn't yet met a threshold he thinks is high enough. In 2007, he testified in New York (PDF) that the state's limit of $58,000 per donor, more than 20 times the federal cap, was too low.
FROM HIS EARLIEST days working on electoral law—he originally got involved representing right-to-life groups during the 1980 presidential race—Bopp has viewed campaign-finance laws as tools that protect people already in power. Politicians, he says, "hate it when groups go around and talk about what they're doing, what their positions are. The genesis of this whole thing is the candidates wanting to stifle criticism...They're going to use the government to protect their power." The classic example, says Bopp, is McCain-Feingold, which he argues Democrats supported only because they saw it to their partisan advantage. Whether it was is "up to debate," he says, noting that 527s took off in response—groups like Swift Boat Veterans for Truth, which helped torpedo Sen. John Kerry's 2004 presidential campaign.
It's quite possible that, largely because of Bopp's success, there will never again be campaign-finance legislation as comprehensive as McCain-Feingold. In recent years, according to Common Cause's Pearson, campaign-finance reformers have backed away from trying to pass new spending or contribution limits because they do raise serious First Amendment concerns (a problem that has also made it hard for reformers to form a cohesive coalition). Instead, they've focused on laws that provide public matching funds for candidates who opt out of the fundraising arms race. Arizona and Maine, for instance, have passed laws with a trigger mechanism that provides matching funds to candidates once their opponents raise a certain amount of money. The idea is to keep campaigns competitive without restricting anyone's speech. "It avoids all the legal obstacles raised by Bopp," explains Pearson.
Bopp, however, disagrees—he's filed an amicus brief for a case challenging Arizona's "clean elections" law, which the Supreme Court was scheduled to hear as this story went to press. Public funding, he argues, suppresses speech because it sets spending limits for candidates who accept it. "The problem is, the reformers are hoisting themselves on their own petard," he explains. "Their real goal [with public-financing schemes] is to restrict expenditures."
The Ninth Circuit Court of Appeals, in a unanimous decision, rejected this line of thinking and upheld the Arizona law in May 2010. But in an unusual move a few days later, the Supreme Court blocked the distribution of public funds for Arizona candidates while it considered the appeal. For reformers, it was a sign that Bopp's logic may once again prevail in the Roberts Court.
Indeed, Bopp has been working toward just such a scenario for almost 20 years. One likely reason the Supreme Court took up the Arizona case in the first place has to do with a Bopp victory in the Eighth Circuit way back in 1994. Representing a right-to-life group, he helped invalidate a Minnesota public-financing scheme much like the Arizona law. That old decision set up the split between circuit-court rulings that allowed the Supreme Court to take up the Arizona case.
The stakes are high, notes Pearson: "If the court does the same kind of sweeping ruling as it did in Citizens United, it has the potential to take down the whole public-financing system." Bopp, of course, would be fine with that. But just in case it doesn't work out, he's got a whole battery of other cases coming down the pipeline. And, as he's proved many times over, he's willing to wait.
* Correction: An earlier version of this article erroneously said Tom DeLay was currently serving time.