You may be one of those people who believe there is too much money in politics. (Polling suggests there are many such people—a vast majority of Americans, in fact.) You may believe that the larger the financial contribution, the greater the chance it will corrupt your representative in Congress, or even your president. You may believe that there are too many political advertisements on television, too many groups with blandly patriotic names trying to change your mind about energy or Medicare or national defense. You may even believe that the nation’s founders would be repelled by the idea of corporations and billionaires pouring millions of dollars into political campaigns. It is reasonable—it is quite respectable—to believe these things.
But if you are one of these people, what you believe is turning out not to matter very much.
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What Jim Bopp Jr. believes is turning out to matter a whole lot more, and he believes the exact opposite. He believes in more money, bigger donations, more corporations and billionaires and outside groups making more noise, openly or anonymously. He believes, in fact, that there can be no such thing as an “outside” group in American democracy—he believes that’s the whole point of the republic.
It wasn’t so long ago that just about everyone who paid attention to how we pay for politics, whether liberal or conservative, thought Jim Bopp was nuts. They certainly thought so back when he first came storming out of the right-to-life movement in the 1980s, a no-name lawyer with a street-corner practice in Indiana swinging the First Amendment like a hatchet, striking at the Federal Election Commission, then at state government after state government—150 cases and counting—and taking his cause to the Supreme Court itself. Where others saw reasonable limits on politicking, he saw shocking suppression of freedom of speech, whether the stage was as big as a presidential campaign or as small as a student-council race at the University of California at Irvine. (He once won a case for a student candidate who’d exceeded the university’s spending limits by shelling out too much at Kinko’s.)
At the highest court in the land, standing in that deep well, with his wife and three daughters watching him, Bopp has gone four for six so far, knocking down laws and regulations that restrained money from entering politics. That record doesn’t count Citizens United v. Federal Election Commission, the campaign-finance case he brought to the U.S. Supreme Court but didn’t get to argue in the end. That’s okay, he’ll tell you—the majority largely endorsed his vision, striking down laws that blocked corporations and unions from spending as much as they wanted to elect or defeat candidates, and paving the way for a new type of political-action committee—the “super pac.” Everyone else just didn’t see what was coming as clearly as he did: the super pac would be the overpowering new weapon for Jim Bopp’s revolution.
So given that, so far, your views have turned out not to matter much, and Jim Bopp’s have turned out to matter a great deal, it may be instructive, if you’re wondering where our politics is headed, to listen to him for a change, instead of to the mainstream media and the “reformers”—he expels the word with considerable asperity.
“We are absolutely at the tipping point,” he told me recently, with unmistakable delight, over what he believes to be the best sushi not only in his hometown of Terre Haute, Indiana, but in the nation. “We’re in the second election cycle with super pacs, and now they’re going to equal candidate spending. Two years from now, they’ll exceed candidate spending by 50 percent. Once the Democrats realize there ain’t any going back on this, then their contributors will start realizing the only thing they can do is participate. Two years after that, it’ll be three times candidate spending.”
And Jim Bopp believes that by then—though probably before then—the incumbents, driven as they always are by a desperate desire to cling to their offices, will resort to doing what he’s wanted them to do all along. To have any chance of competing with the super pacs, they will abolish, or at least drastically raise, all contribution limits, to whichever candidate, from whatever source. And then the money will really start to pour in.
Indeed, the day before we had lunch, Illinois—which, like other states, regulates nonfederal elections—passed a new law saying that if a super pac spends more than $250,000 in a statewide race (not much money, as these things go), the contribution limits in that race will be eliminated.“We’re in the endgame,” Bopp told me with a smile of satisfaction. “It’s already begun.”
Video: James Bennet discusses the absurdity of campaign finance with Trevor Potter, a former FEC chairman and the man behind Stephen Colbert's super PAC.
Campaign finance is a deeply boring subject, so eye-glazing that one might almost suspect a conspiracy to make it that way, considering its centrality to how the country is governed. The ways we pay for politics are defined by a series of interlocking mazes—of congressional statutes and federal regulations, court cases and state laws. But those mazes are built on top of some of the most basic ideas about the nature of the republic, about the right of free speech, the sources of power and corruption, and the relationships of citizens to the state and to one another. That foundation is shifting now, to a degree not seen since Watergate, and perhaps not in more than a century, with effects that even the most-experienced politicians are just coming to appreciate. In the wake of Citizens United (though not only because of Citizens United), the combination of permissive judges, paralyzed regulators, and a deadlocked Congress has emboldened political operatives—quite sensibly—to raise and spend money in ways they wouldn’t have dared before. Not since the Gilded Age has our politics been opened so wide to corporate money and donations from secret sources.
As Bopp argues, this new era has barely begun, and already, in this election season, we are experiencing a step change. In 2010, the first election year for super pacs, a total of 84 of these groups spent $65 million, according to the Center for Responsive Politics. As of August 23 of this year, 797 super pacs had raised more than five times as much—upwards of $349 million. Fully 60 percent of that money came from just 100 donors.
We are quickly becoming accustomed to this new magnitude of giving. Individuals, unlike corporations and unions, have always been free to spend as much as they want on politics, as long as they are acting independently of a formal campaign or political party. But aside from the occasional foray by a billionaire, like George Soros, they just never did so to the extent they are now—maybe because the new infrastructure, including super pacs, did not exist, or maybe because it just didn’t seem like a smart or respectable thing to do. Yet when Newt Gingrich closed out his campaign, he thanked one couple—the casino magnate Sheldon Adelson and his wife—for “single-handedly” keeping him competitive with Mitt Romney’s super pac, as if this was a noble rather than humiliating distinction for a presidential aspirant with a theoretically national network of support. For their part, the Adelsons turned around and gave $10 million to a super pac supporting the candidate they had been attacking, Mitt Romney. Just days after Congressman Paul Ryan joined the ticket as the Republican vice-presidential candidate, in August, he flew to Las Vegas to meet with Sheldon Adelson and other top donors behind closed doors at Adelson’s Venetian casino. (Adelson’s politicking was widely seen as evidence of his concern for the fate of Israel, though it is also true that his company is the subject of two potentially devastating Justice Department investigations.)
Super pacs are thriving, but they already seem almost old-fashioned. Yes, you can, if you want, create a shell corporation and funnel millions to a super pac without identifying yourself (it’s been done). But why not put your unlimited contributions into a fund that doesn’t have to identify you? In the post–Citizens United gold rush, political operatives are stretching an old IRS loophole, creating nonprofit “social welfare” groups, called 501(c)(4)s, that can raise and spend money on campaigning without disclosing their sources. In August, an investigation by ProPublica found that two such groups had put more money into the presidential campaign than all the super pacs combined—though the super pacs themselves had spent more than the political parties. “I enjoy anonymity,” Foster Friess, the Wyoming investor, told NBC News in August, in explaining his shift from super pacs to more-secretive vehicles.
In 1974, Congress established a public financing system for presidential elections, providing equal amounts for the major-party nominees, as long as they agreed not to raise money from private donors for their own campaign (though they could, and did, raise private money for a political party). Barack Obama, in 2008, was the first presidential candidate to reject this public funding. This year, both candidates opted out, and they have been putting a great deal of time into asking for money. In July, they both held more private events for donors than public events for potential voters. By late July, Obama had held a total of 194 fund-raisers in his third and fourth years in office—more than his four predecessors in the same period combined, according to a study by the political scientist Brendan J. Doherty, of the United States Naval Academy. In the same period, Ronald Reagan held three fund-raisers.
In 2000, spending on all federal races totaled about $3.1 billion. By 2008, it had risen 70 percent, to $5.3 billion. This year, it’s expected to be substantially more—though, given the amount of undisclosed spending, the sum may never be known.
“It’s a good thing,” Bopp told me. “We need more spending on elections. Most people don’t even know who their congressman is. Don’t even know their name or their party.” There are many reasons for this ignorance, he continued, but “part of it is a lack of relevant, pertinent information. The more money that is spent, the more individualized messages will be able to be funded. The more individualized messages, the more voters will feel that the message is pertinent to them, and the more they’ll learn.
”In the parallel political world—a world in which more money, more anonymity, and more spending by noncandidates are bad things, dangerous to democracy—the most plausible candidate to be Bopp’s foil is the lawyer Trevor Potter. Potter is also a midwesterner (from neighboring Illinois) and a Republican; like Bopp, Potter got his earliest political experience volunteering for Barry Goldwater. But his own love of constitutional law, study of the Founders, and adventures in Republican politics sent him down a very different intellectual path. Potter was one of the leading lawyers behind the Bipartisan Campaign Reform Act of 2002, known as McCain-Feingold, the most significant campaign-finance law in 30 years. To a large extent, it is Potter’s work that Bopp has been systematically gutting. “Jim has always been in the position of making arguments that other people thought were wild-eyed, went too far,” Potter told me, a little ruefully. “And he’s proved them wrong.”
The two lawyers’ views about money and politics are precisely inverse: An outrage to one man is a reform to the other; a cesspool of corruption to one is a font of democracy to his antagonist; what to one is a clear-as-day rationale is to the other a deep, twisting rabbit hole. Bopp is the campaign-finance lawyer to right-wing causes and candidates; Potter is the campaign-finance lawyer to that right-winger-in-a-fun-house-mirror, Stephen Colbert, who has done a series of segments in which he has set up and deployed his own secretive campaign funds. Both lawyers are such effective advocates for their respective views that traveling between Boppworld and Potterworld can be a dizzying experience. You can find yourself wondering sometimes which man is the crusader for truth, justice, and the American way, and which is the bizarro version.
Given that such basic ideas about the sources of American democracy are in flux—that two such considered men can take such diametrically opposed views of them—you can also find yourself wondering: Does this mean that our democracy is vibrant, or that it is doomed?
They say in politics that where you stand depends on where you sit, and that may have something to do with how Bopp and Potter reached their respective conclusions. Bopp came to campaign finance via one of those “outside” groups, to borrow his air quotes: he was the general counsel for National Right to Life back in 1980, when the group got crosswise with the Federal Election Commission after it distributed voter guides describing where candidates stood on abortion and other social issues. The guides, which went out just before the election, were seen as important to the victories of Reagan and 12 new Republican senators. “So then the FEC immediately thought they ought to be outlawed,” Bopp told me grumpily. He sued to protect the guides, and won. Bopp is a Republican stalwart (he sees the Democratic Party as socialist), and he has done yeoman’s work for the party—among other accomplishments, he developed the legal rationale by which the Supreme Court decided Bush v. Gore. Bopp worked for Romney in 2008 and backs him this time. But his roots are outside the GOP establishment.
Bopp’s law office remains defiantly planted at the corner of Sixth Street and Wabash Avenue, in downtown Terre Haute, American flags hanging in its windows. When he showed me around the dusty, drought-hammered streets this summer, he waved at the emptied storefronts across Wabash, and the space still tenuously held by Rogers Jewelers (“The Diamond Store of Terre Haute”), which was in the midst of a moving sale. During his first campaign, in 1964, he recalled, the Republican Party occupied one such storefront, and two spontaneous citizens groups formed in two other storefronts to also campaign for Goldwater, outside the formal party. That would never happen today, he told me. “Why is that?” he went on. “The laws. You gotta get a lawyer, you gotta get an accountant—well, forget about it.” His voice was rising in frustration, or maybe with a passion to be understood. “See?” he asked me. “We’ve really lost something! We’ve lost involvement.”
Potter came to campaign finance five years after Bopp, via a presidential campaign. He was a fledgling Washington lawyer when Vice President George H. W. Bush assigned his firm the task of setting up the exploratory committee for his 1988 run. Potter ended up as the campaign’s deputy general counsel. During the primaries, he was stunned by how one of Bush’s opponents, Pat Robertson, evaded the rules governing disclosure and spending, using his corporate plane and his Christian Broadcasting Network to campaign. Even though his guy won, Potter remained troubled. “For me,” he said in one of several conversations over the past few months at his present D.C. firm, Caplin & Drysdale, “the takeaway was that the system wasn’t working. Bush was playing by the rules, Robertson wasn’t, and Robertson got away with it.” Where Bopp encountered a system that seemed devised to shut some groups out, Potter found one that seemed meant to treat candidates equally, but instead was being abused by some for unfair advantage. Bopp began suing the FEC, battering away from the outside; Potter surprised the Bush White House by saying he would like to become a commissioner at the FEC. He wanted to fix it.
The Federal Election Commission, whose very name seems calculated to induce indifference, was created by Congress to enforce the post-Watergate campaign-finance laws. Its six commissioners, who serve six-year terms, are supposed to work together without partisanship. But three commissioners come from each party, and they need a majority for any decision; they deadlock over anything that might disadvantage one side or the other. The commission is, as a result, both an emblem and a cause of our great governmental dysfunction. After the Citizens United decision, the commissioners took almost two years to agree to issue a request for public comment on whether they should change campaign regulations that the Supreme Court had invalidated.
During his time on the commission, Potter managed to raise its pulse a bit, persuading his fellow commissioners, for example, to enact rules limiting politicians’ personal use of campaign funds. But when several influential members of Congress complained about the new rules, Potter realized he would make no more headway with his colleagues. “They felt I had gotten them to do something that endangered their reappointment,” he told me. “After that, I couldn’t get any more reforms.”