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.