I am pleased to welcome Ann Southworth to the ELB Book Corner, author of the new book,  Big Money Unleashed: The Campaign to Deregulate Election Spending (Chicago). The discount code for ELB readers is BIGMONEY2023.  This is the final of three posts:

Here I briefly describe one theme explored in the second half of Big Money Unleashed.

As noted in my first post, opponents of campaign finance regulation borrowed and improved upon a model of constitutional change forged by civil rights and civil liberties activists in an earlier era. That model of law reform attracted substantial criticism in the Warren and Burger Court years, mostly but not exclusively from the political right. Critics argued that unelected judges and activist lawyers were exercising powers that properly belonged to the elected branches and that they were proclaiming rights not found in the Constitution, using illegitimate methods of interpretation and reasoning. As the composition of the federal judiciary changed to include more judges drawn from and vetted by Federalist Society and Heritage Foundation networks, and as conservatives created a field of legal-advocacy organizations to pursue constitutional rights claims through the courts, liberals and conservatives swapped roles in these debates. Liberals and progressives are now more often the ones crying foul and raising concerns about the legitimacy of the process, as conservatives pursue and win major rulings, some of which are antithetical to the goals of the movements that pioneered the strategies.

The story told in Big Money Unleashed demonstrates—if any such evidence were necessary—that the development of constitutional law in the U.S. does not stand apart from politics. Lawyers, advocacy groups, and political and financial patrons worked through the courts to alter what falls into the category of constitutionally protected free speech and association. As they sought to expand constitutional protection for campaign spending, they made common cause with advocates and financial backers who saw how free speech claims could be similarly useful in other policy battles—e.g., over economic regulations, union activities, consumer protection, abortion, and LGBTQ rights. An emerging conservative media ecosystem helped to disseminate these ideas about the meaning of the First Amendment. Many of the same players were also active in federal judicial nomination and confirmation battles.

Critics of the Supreme Court’s First Amendment jurisprudence, such as Jeremy Kessler and David Pozen, identify a deeply inegalitarian tendency that has become more pronounced during the Roberts Court era. They say that free-speech doctrine now operates much like the Lochner era’s Fourteenth Amendment jurisprudence, enabling powerful actors to thwart economic and social welfare regulation. Speech law has veered quite far from its origins in claims on behalf of political dissenters in the early twentieth century.

Those who hope to loosen constitutional law’s constraints on regulating money in American politics have extraordinarily difficult work ahead. The process that generated current campaign finance law involved battles over judicial appointments, but it also entailed substantial investments in legal theories, institutions, networks, coalitions, and messaging. If the doctrine now tilts too far toward a libertarian conception of the First Amendment, and if it rests on a flawed conception of responsive democracy that prioritizes responsiveness to major donors over accountability to the people, achieving a better balance will require major long-term investments like the ones that got us here.

I am pleased to welcome Ann Southworth to the ELB Book Corner, author of the new book,  Big Money Unleashed: The Campaign to Deregulate Election Spending (Chicago). The discount code for ELB readers is BIGMONEY2023.  This is the second of three posts:

I’ll turn now to the roles played by lawyers, legal advocacy groups, and political and financial patrons in the process of reshaping First Amendment law to prevent most regulation of money in politics.

My interest in this topic grew out of research for another book, Lawyers of the Right: Professionalizing the Conservative Coalition (2008), a group portrait of the lawyers active in the conservative legal movement. That book explored the role of lawyer networks in generating ideas necessary to change law, cultivating credibility for those ideas, pursuing law reform campaigns modeled on those of public interest law groups of the political left, and building litigation alliances. It also considered the challenges of managing deep differences in the policy priorities of the primary constituencies of the conservative legal movement. These constituencies mostly avoided direct conflict with one another in Supreme Court litigation during the period covered by my research, but they generally did not actively assist one another. Campaign finance regulation was an exception; organizations linked with all the major constituencies of the Republican alliance joined together on the same side. I found it puzzling that social conservatives assisted in a battle that seemed likely to benefit primarily wealthy individuals and corporations, perhaps even at the expense of the more populist elements of the Republican alliance.

The story of Big Money Unleashed begins in the 1970s, when entrepreneurial lawyers demonstrated how a policy dispute over campaign finance regulation could be transformed into a constitutional battle waged through the courts. They received support from wealthy individuals of the political left and right who wanted greater freedom to use their money in elections and from politicians who wanted that financial backing. The effort gathered momentum as opponents of regulation established specialized groups to challenge restrictions, recruited ideologically committed lawyers, and introduced and reworked ideas to unite disparate groups and constituencies (or at least the lawyers for these groups and constituencies) around the idea that regulating campaign spending amounts to censoring political expression. Lawyers generated legal theories, found sympathetic plaintiffs, and organized amicus support and media strategies. Opponents of regulation tapped into legal mobilization around abortion, guns, and Tea Party activism, as well as populist mistrust of elites, framing the effort as a fight on behalf of the little guy’s right to engage in free speech. They were attentive to signals from the justices. The ACLU and some labor groups offered partial support. The Federalist Society’s Free Speech and Election Law Practice Group served as a site for cultivating arguments and coordinating strategy.

Kentucky Senator Mitch McConnell played a central role. He led Republican opposition to campaign finance legislation, assembled teams of lawyers to challenge regulations in the courts, recruited FEC commissioners who shared his opposition to regulating campaign finance, and oversaw the appointment of federal judges who would be receptive to this deregulatory agenda (and other Republican priorities). He deployed his considerable fundraising prowess to raise money that Republican leaders could use to try to hold the fractious G.O.P. coalition together.

Big Money Unleashed is an account of the creation of constitutional doctrine that gives Mitch McConnell and other opponents of regulation confidence that they will prevail in the courts, even if legislators try to impose new restrictions on money in American politics.

I am pleased to welcome Ann Southworth to the ELB Book Corner, author of the new book,  Big Money Unleashed: The Campaign to Deregulate Election Spending (Chicago). The discount code for ELB readers is BIGMONEY2023.  This is the first of three posts:

$peech

            I am grateful to Rick Hasen for the opportunity to post about my new book, Big Money Unleashed: The Campaign to Deregulate Election Spending. My posts today, Thursday, and Friday sketch the book’s argument and some implications, using edited excerpts from the book.

Americans across party lines believe that reducing the influence of money in politics should be a top policy priority. But legislators are constrained in responding to these concerns by Supreme Court decisions finding that most campaign finance regulations violate the First Amendment. The text of the First Amendment does not mention campaign finance, of course. How then did we arrive at a constitutional understanding that impedes legislative action in this area? 

 Most ELB readers are familiar with the broad history of the doctrine. In Buckley v. Valeo (1976), the Court issued a compromise ruling on the constitutionality of election reform legislation adopted in the wake of the Watergate scandal. Buckley upheld the statute’s contribution limits but found that the law’s limits on independent expenditures violated the First Amendment’s guarantee of free speech and association. The Court ruled that the only constitutionally permissible reason to regulate campaign finance was to prevent corruption and the appearance of corruption; government could not limit money in politics to promote political equality. The justices’ votes cut across ideological and partisan lines.

For years after Buckley, the Court upheld campaign finance laws that could be construed as fighting corruption, but it has invalidated or severely limited nearly every campaign finance regulation it has considered since 2006. (Federal Election Commission v. Wisconsin Right to Life (2007), Davis v. Federal Election Commission (2008), Citizens United v. Federal Election Commission (2010), Arizona Free Enterprise Club’s Freedom PAC v. Bennett (2011), American Tradition Partnership Inc. Bullock (2012), and McCutcheon v. Federal Election Commission (2014).) The majority opinions in these sharply divided rulings treat campaign finance regulation as a dangerous form of government censorship.

What explains the sharp deregulatory turn? The most important and obvious part of the answer is about judicial appointments. The Supreme Court assumed a more hostile stance toward campaign finance laws as Republican-appointed justices vetted through the conservative legal movement gained control. Justice Samuel Alito’s arrival on the Court to replace Justice Sandra Day O’Connor gave opponents of campaign finance regulation the majority they needed to strike down these laws.

But that is not the whole story. The central claim of Big Money Unleashed is that this change in constitutional law is the result of a long-term project in which lawyers, advocacy organizations, and their political and financial patrons also played key roles. Drawing from anonymous interviews with fifty-two lawyers who participated in major cases, as well as public records and archival materials, the book explores how these actors constructed an understanding of the First Amendment that makes most campaign finance regulation vulnerable to constitutional challenge. They pursued a litigation campaign modeled on the NAACP’s strategy for attacking racial segregation. The justices participated in developing the law, of course, but so did the attorneys who devised the theories necessary to support the doctrine, the legal advocacy groups that advanced those theories, the patrons who promoted and financed these efforts, and the networks through which these actors coordinated strategy and held the Court accountable. There was nothing inevitable about how those theories, actors, and resources came together to create new law, and there was nothing inevitable about the doctrine that resulted from this effort.

As a result of this litigation campaign, claims about the meaning of the First Amendment that were novel when introduced decades ago are now firmly embedded in constitutional law. That law is a source of power for those with big money to wield in elections and for the politicians who attract support from big money players.

I am pleased to welcome Mary Ziegler to the ELB Book Corner, author of the new book, Dollars for Life: The Anti-Abortion Movement and the Fall of the Republican Establishment (Yale, 2022). Here is the final of three posts:

The antiabortion movement long made the argument echoed in Dobbs: that Roe had short-circuited a process of public deliberation, and that American democracy would be stronger if elected representatives, rather than judges, made decisions about abortion. The Dobbs Court itself stressed this argument in explaining the decision to dismantle the right to choose abortion. For years, some within the movement had suggested that returning the issue to voters would benefit the movement—and not just because federal constitutional challenges would be off the table. From the 1970s onward, some within the movement believed that most Americans would seek to criminalize abortion if they truly understood what it was.

But from the 1960s onward, the antiabortion movement saw the protection of the fetal person as far more important than popular politics. That made campaign finance rules more important: if the abortion fight was about who exercised power, rather than about what voters wanted, then campaign spending could give a movement with an unpopular position a much-needed edge.

By the 2010s, antiabortion groups had tied their campaign finance work to efforts to what they framed as ballot integrity work. Bopp, the general counsel of the National Right to Life Committee, worked with Judicial Watch and attorneys like Cleta Mitchell to devise strategies to make it harder to vote; antiabortion attorneys drafted and defended voter ID laws. Bopp became general counsel for True the Vote, defending the group in court and challenging early and mail-in-balloting schemes in the lead-up to the 2020 election.

After the January 6th attack, movement leaders only redoubled this work. The Susan B. Anthony List and Family Research Council launched a project to limit early and mail-in balloting. The Thomas More Society invested in the Amistad Project, which had sought to overturn the 2020 election and more recently championed the independent state legislature theory.

The movement’s involvement with voting and campaign finance in part reflects broader changes to the Republican Party. Deepening political polarization and negative and affective partisanship, along with the rise of conservative media, had fueled the emergence of populist candidates interested in catering to the base, while using tools like gerrymandering to make it harder for others to vote.

But antiabortion leaders had their own reason for devising strategies to make it harder for voters to register their views on reproductive rights. Polls after Citizens United and Dobbs showed that voters were still against sweeping bans—if anything, in states where criminal laws were in force, opposition only hardened. The result of ballot initiatives confirmed that voters might not be friendly to the movement’s strategies (the abortion-rights side prevailed in six of six initiatives in 2022).

The story in Dollars for Life is about a movement seeking to change the law and broader society without changing hearts and minds. That process is ongoing: in Ohio, lawmakers are experimenting with a strategy to make it harder for voters to approve ballot initiatives; Republicans in other states have also considered steps to make it harder for voters to put abortion on the ballot.

That story also has important lessons for those seeking to reverse Dobbs. The antiabortion movement had a clever litigation strategy and tremendous patience, but by the 1990s, the movement’s savviest players understood that it might never win unless there were broader changes to the way elections worked and the way the Supreme Court as an institution functioned. Over the past half century, the abortion struggle has become a battle about not just reproductive rights but voting rights and campaign finance. And just as smart lawyering would never have been enough to get rid of Roe, much more will be needed to undo Dobbs.

I am pleased to welcome Mary Ziegler to the ELB Book Corner, author of the new book, Dollars for Life: The Anti-Abortion Movement and the Fall of the Republican Establishment (Yale, 2022). Here is the second of three posts:

The consensus view of political scientists and historians for some time had been that the GOP had said all the right things when it came to abortion but used very little political capital on the issue, when it came to judicial nominations, federal legislation, or executive orders. That was how antiabortion lawyers understood the lay of the land after Casey. Lawyers for groups like the National Right to Life Committee believed that Republican presidents preferred to pick the justices who would be the most easily confirmed—and ultimately made decisions to maximize their own electability.

This kind of justice, in turn, would be more likely to worry about the institutional legitimacy of the Court, or about her own legacy. These kinds of considerations might lead to hesitation when the moment came to consider the reversal of Roe. To get Roe reversed, antiabortion lawyers believed in the 1990s, would require justices who cared less about public opinion and were indifferent to backlash. That, in turn, seemed to require a very different kind of Republican leadership.

For the moment, it seemed that Republican leaders prized electable candidates, at least in national elections. Antiabortion leaders pointed as an example to the 1996 campaign of Pat Buchanan, a kind of proto-Trump who railed against working women, called for the criminalization of abortion, and waved a literal pitchfork. Republican primary voters had adored Buchanan early in the 1996 election season, especially compared to Bob Dole, the dull and dour senator from Kansas, but many in the GOP feared that Buchanan was too extreme for general election voters, and major donors and party leaders managed to bury Buchanan’s candidacy in a mountain of soft money. For the leaders of groups like the National Right to Life Committee, the key was to find a way to ensure the success of the next Pat Buchanan—and to counterbalance the financial muscle of traditional party leaders.

Most simply, focusing on campaign finance might make it easier for Republicans—who historically outraised the competition—to win elections and cast votes against abortion. But the movement’s vision for campaign finance was more complex. Becoming adept at circumventing existing rules—or helping to lead the charge to gut them in Congress or court—could make the antiabortion movement seem to be a more valuable political partner. Well before Roe, Americans strongly opposed the kind of outright ban preferred by most in the antiabortion movement, and at various points in the past, that made partnering with the movement seem to be a political liability. Becoming a major player in the world of campaign finance could give ambivalent Republicans a reason to stick with the antiabortion movement.

Over time, in the lead-up to and aftermath of major decisions like Citizens United and SpeechNow, the campaign finance struggle served an additional aim: creating opportunities for outside spending groups, like nonprofits and super PACs. Of course, traditional party leaders could (and did) form their own such groups (Karl Rove, perhaps the ultimate establishment figure, created one of the most famous early super PACs). But it would be harder for the pro-electability party insiders to control outside spending groups. That might make it easier for conservative movements to have more of a say—and to save the next Pat Buchanan.

All of this did not solve the movement’s problems. A politician like Pat Buchanan might take the right positions on abortion, and might answer to grassroots conservatives. But there was a reason Republican leaders had not wanted to see someone like Buchanan at the top of the ticket: he would lose. To reverse Roe, then, the movement had to find a way to exercise power when its ultimate goal remained deeply unpopular.

I am pleased to welcome Mary Ziegler to the ELB Book Corner, author of the new book, Dollars for Life: The Anti-Abortion Movement and the Fall of the Republican Establishment (Yale, 2022). Here is the first of three posts:

Since the decision of Dobbs v. Jackson Women’s Health Organization, commentators have tried to explain how the conservative legal movement and antiabortion movement achieved such a tremendous victory—and in the face of consistent public support for abortion rights. In recent months, progressives have spotlighted the incremental litigation campaign developed by the antiabortion movement.

For the past fifty years, the antiabortion movement’s underlying goal remained sweeping: not just the reversal of Roe but the recognition of fetal personhood and the creation of a national ban on abortion. But the campaign to reverse Roe proceeded more gradually, centering on comparably modest restrictions and defending them as consistent with Roe. In this way, the movement sought to hollow Roe out and make it easier to overrule.

There is already parallel campaign to reverse Dobbs. Reproductive rights litigators are seeking limited victories in state court, focusing on state constitutional rights to avert death, for example, or access the procedure in cases of rape or incest. This campaign has already created an important platform for the stories of women and other pregnant people living in states where abortion is a crime. State supreme courts, even in conservative states, have recognized limited rights. Incrementalism, it seems, may be working.

As the current fight against Dobbs suggests, the history of the quest to reverse Roe has ongoing importance, and focusing on the antiabortion movement’s litigation strategy tells less than half the story. Abortion opponents developed this litigation strategy in the 1970s, and aligned with the Republican Party in the early 1980s, but neither strategy yielded much in the way of results until decades later. In truth, the reversal of Roe had as much to do with changes to the way Americans vote and spend in elections, as I argue in Dollars for Life, a book recently published by Yale University Press.

The book draws on extensive archival research, including exclusive access to the archive of James Bopp Jr., a prominent figure in struggles over campaign finance and abortion. The book began when I was working on a previous project and kept encountering material on campaign finance in the archives of antiabortion organizations. These finds did not at first make much sense: antiabortion groups had comparably fewer resources and did not stand to benefit more than most interest groups if more money was funneled into federal elections (if anything, groups supportive of abortion rights, like Planned Parenthood, have customarily outraised and spent their opponents on the right). There were obvious antiabortion figures in the history of campaign finance litigation: Senator James Buckley, the brother of the conservative commentator William F. Buckley, was not just a part of Buckley v. Valeo but also the champion of an antiabortion constitutional amendment. One of the Supreme Court’s early decisions on campaign finance and ideological nonprofits, Massachusetts Citizens for Life v. Federal Election Commission, involved part of the movement. But there seemed to be no reason that the antiabortion movement would take a deeper interest in money in politics.

The more deeply I researched, though, the clearer it became that many within the movement had come to realize that an incremental litigation campaign was not enough. Immediately after Roe, antiabortion lawyers had prioritized a constitutional amendment, and when that failed, even with a Republican in the White House and the GOP controlling both house of Congress, the movement developed a new focus: the reversal of Roe. Antiabortion lawyers worked to get Republicans elected, and to lobby the GOP to confirm judges who would reverse Roe. But in 1992, three Republican-nominated justices voted to save Roe in Planned Parenthood v. Casey. As the movement considered what had gone wrong, its leaders suggested that abortion opponents did not have enough influence in either the federal judiciary or the Republican Party. Whatever the solution was, movement leaders argued, would have to do with campaign finance.