With his FEC term ending, Potter took a sabbatical of sorts in the fall of 1995, to teach at Oxford and research other electoral systems in hopes of finding a better financing model. This proved a more fruitless undertaking than trying to fix the FEC. “Every system I looked at, I said, ‘We can’t do that,’ ” Potter recalled. It is, for example, a shopworn lament of right-thinking people that the United States doesn’t have a compressed campaign cycle like the British, who confine their campaigning to about a month. The reason the United States can’t have such limits, or those of any of the other systems Potter looked at, is that it has something all those nations lack: a broad constitutional right to free speech. (Some campaign-finance lawyers enjoy mimicking Jim Bopp’s habit, in his many court arguments, of passionately quoting “Congress shall make no law … abridging the freedom of speech” before wondering what, exactly, could be more clear than that?)
Potter, who is not given to despair, decided to attack the problem from a new angle. He returned to Washington and the practice of law, and then went to see Senator John McCain, who was at work with his Democratic colleague Russ Feingold on a campaign-finance law. They were hoping to rein in the practice (perfected, if that is the word, by the Clinton campaign in 1996) of raising vast amounts of so-called soft money. This money, like the funds raised by super pacs today, could come in unlimited amounts. But the parties had to disclose the sources of their money, and in theory, they had to spend the donations to advance issues rather than to promote or attack candidates. In practice, the parties skirted the legal requirement that they not “expressly advocate the election or defeat of a candidate” by not telling viewers how to vote but instead urging them to call a particular candidate and tell him, in effect, what a scumbag he was for being wrong about some matter.
Potter had a message for the two senators: he didn’t think their bill, as then written, would pass muster with the Supreme Court. Potter remembers Feingold reacting angrily, but McCain calming him down by saying, “I am not spending seven years of my life to pass something that is going to be declared unconstitutional. We need to get this right.”
And so Potter spent several years (interrupted by a period as McCain’s general counsel for his 2000 presidential bid) as a part-time volunteer working to recast the bill. McCain-Feingold had two goals: to ban soft money, and to regulate the sorts of political advertisements that attacked candidates while masquerading as being about issues. Its upshot was to ban corporations and unions from paying for candidate-specific ads in the middle of a campaign. To protect the law before the Supreme Court, Potter advised the senators to set its foundation in Austin v. Michigan Chamber of Commerce, a 1990 case in which the Court had ruled that limits to politicking by corporations did not violate the First Amendment. The Bipartisan Campaign Reform Act of 2002, signed into law by George W. Bush, was a historic achievement of campaign-finance reform—and in retrospect, maybe its high-water mark.
It took Jim Bopp and his allies eight years and three trips to the Supreme Court to knock down McCain-Feingold’s obstacles to corporate and union money. But Bopp finally got what he wanted: in Citizens United, in 2010, the Court not only invalidated the McCain-Feingold restrictions, it tore out the foundation Potter had relied upon, overturning its own precedent by declaring that Austin had been wrongly decided. McCain-Feingold may have made history, but Citizens United went back and rewrote it.
When I first spoke with Potter about Citizens United, last November, he was still trying to understand how the majority could have come to what he saw as such a wrongheaded decision. Part of his explanation then was that, since Sandra Day O’Connor had retired, there was no sitting justice who had ever run for office. None of the justices really understood the risks of corruption created by endless fund-raising and well-financed independent campaigns seeking specific legislation, and so they failed to defer to Congress, which knew the dangers firsthand.
But Bopp argues that the issue is not that the Court doesn’t understand how politics works; it’s that the Court understands politics all too well, and precisely for that reason should not defer to Congress on campaign matters. To Bopp, any attempts by sitting politicians to restrict money in politics are inherently suspect. “There is nothing they are more interested in, more attached to, than their own election,” he told me. “Only some of them have wives they’re more attached to than their own election.”
Slender, silver-haired, and genial, Bopp usually comes across as what he might have been—the third in a generational line of doctors in Terre Haute. But when he encounters an argument he really doesn’t like, Marcus Welby vanishes and a far harder customer takes his place. Bopp’s brow contracts and his husky, slightly whistling voice tends to climb and acquire a raspy edge. This Bopp came into focus as he warmed to his argument about how the overriding self-interest of incumbents undermines the pious claims of reformers.
“Okay, this is where the reformers have a real problem,” he said, picking up speed. “On the one hand, they say, ‘We need really low contribution limits, because we know all these politicians are so inherently corrupt that the smallest contribution could create undue influence.’ At the same time, when they pass campaign-finance laws, they’re sacrificing their self-interest.” His whole face seemed to clench: “Bullshit!” How could anyone think that politicians who might be bought off by a single contribution would turn around and write laws to give challengers a fair shot at unseating them? “That’s a ridiculous position,” Bopp concluded, his voice and expression calm again, if icily dismissive.
While candidates care obsessively about their own elections, a political party has broader interests. It wants to secure a majority, so it often backs challengers to the other party’s incumbents, rather than just protecting its existing officeholders. For Bopp, McCain-Feingold was part of the incumbent-protection racket, an attempt to “kneecap political parties” by depriving them of soft money, shutting them out of campaigning just like the insiders once tried to shut out the right-to-life movement.
This summer, the Court summarily reversed a case that would have given it the chance to revisit Citizens United by examining the corrupting effects, in the real world, of so-called independent expenditures. That’s when Potter abandoned his hope that the Court was simply being naive and concluded that its majority was living in Boppworld. “It is clear,” he told me, “that Justice Scalia and others think that anything Congress does in this area is self-serving incumbent protection.” Yet Potter, who is waging his fight for reform through a nonprofit he created, the Campaign Legal Center, thinks Jim Bopp and his allies are overplaying their hand. While the Court’s conservative majority may have blocked efforts to restrict contributions, it has also signaled that it believes the other branches of government have the authority to act against the fastest-growing source of political money—the mysterious groups that refuse to identify their donors.
There is nothing inherently evil about money in politics. In a world where Coca-Cola spends $3 billion a year promoting soft drinks, is it really unconscionable that we might spend $6 billion (and counting) every four years promoting (and, yes, attacking) candidates for federal office? And, as Bill Clinton once said—during a fund-raiser, while fending off a fund-raising scandal—you can’t take the politics out of politics: seeking money is like seeking votes, and if politicians learn something from the experience, that is not necessarily a bad thing. It was at a prospecting event for political money among Los Angeles elites last year that Joe Biden met the children of a gay couple and had his epiphany that gay marriage was not evil. Whatever you think of gay marriage, that encounter at least prompted the White House to end its ducking and weaving on a big question and take a stand.
Yet if political money is not wicked in principle, it has often proved troublesome in practice, with the trouble growing in proportion to the cost of campaigning and the need for more money—and also in proportion to public cynicism about politics. Once professional politicians began displacing wealthy gentlemen in elected office, in the mid-1800s, they quickly discovered a handy way to pay for the campaigns they couldn’t afford themselves: demanding money from people in return for government jobs. This did not necessarily produce a high standard of government worker, but politicians didn’t revise their approach until a campaign supporter of James Garfield’s, denied a government post, shot the president dead. The result was the creation of the civil service through the 1883 Pendleton Act, which cut off patronage as a source of political money and had the unintended consequence of driving politicians toward another source: big corporations.