Gerry Hebert of the Campaign Legal Center does not agree that he unfairly questioned Jim Bopp’s tactics in developing the case for the Christian Civic League of Maine.  He had said that the case, inspired by Bopp, who also offered to take it without charge, was for this reason "not about grassroots lobbying," only about "this one person crusade… to take down a law [Bopp] doesn’t like."  Gerry’s view was criticized in this space, and he has responded at length on the election law listserv, in remarks that he has consented to have reproduced here. 

     This is not just a conflict between opposing views about the constitutionality of the electioneering communication provision applied to grassroots lobbying—in this instance, lobbying directed toward Maine’s Senators Snowe and Collins, on the Marriage Amendment Act.  That is a difference of legal opinion and it will, sooner or later, be resolved.  The immediate disagreement is over the ground rules of this legal struggle—the rules that determine the right to a hearing—and it is Hebert’s position, both for his legal purposes and more generally, that Bopp has broken this rule, arranging for a hearing to which his client is not entitled.  And behind this difference are some subtle but politically potent and profoundly contestable assumptions about the legitimacy of the interests that Bopp represents.  By many who hear it, Hebert’s point will be understood this way:  questionable organizations are being used through questionable means to advance questionable positions.

     These are the principal pieces of Hebert’s (and the Campaign Legal Center’s) attack on Bopp and the reasons why, each considered separately, they are dubious.  And there is here also a subtext, which reveals a great deal about the strong, if not hard, feelings on both sides.

     1.  CCL is faking an interest in the issue (The Marriage Protection Amendment).  Hebert says this about CCL’s alleged dissembling about its interest:

In the complaint Mr. Bopp drafted, he alleges that CCL is a nonprofit, nonstock Maine corporation interested in "laws protecting traditional marriage" and other public issues. At deposition, their executive director said the group's main purpose was "to elect honest and competent public officials."

     This a selective reading of the record, hardly a fair rendition of CCL’s interest in the subject matter of the proposed grassroots lobbying communications.  In its opposition, the FEC tells a different story:  about CCL’s public communications "in recent years" about "gay rights and other issues, as well as federal candidates, including Senator Snowe."  FEC Opp. at 11.  The FEC writes:

In 2004, for example, CCL made public statements on the issue of gay marriage in its own print publications, its website, at least one newspaper column, many quotes supplied to the news media, CCL print ads, phone calls, mailings to supporters, and church bulletin inserts, many of these urging supporters to contact federal and state officials.

Id.  CCL also administers a state PAC, including (as it happens) the Coalition for Marriage, "created to support a 2005 Maine state ballot initiative to overturn Maine’s gay rights law."  Id. at 10.

     It is not then by some invention of Jim Bopp’s that this organization would be become one with an interest in testing the legal limits on its advocacy of this particular legislative proposal—the Marriage Amendment—to this particular Senator, Olympia Snowe.  As the FEC acknowledges, CCL has been active on this issue, but not, so far, through broadcast communications.

     Nor is it particularly dignified for the Center to make an issue of the fabrication of "interests," since its clients have based standing on the spurious claim that they are suing to protect their interests as candidates for re-election in danger of soft money-funded attacks.  Their statement of "interest" is considerably further removed from the "facts" than CCL's. 

     2.  Bopp proposed the suit, supports it with free legal services, and probably wrote the ad.

      All true, no doubt, but it is hard to see how this is at all different from the many instances when lawyers—or for that matter, public interest organizations well staffed with or supported by lawyers—present themselves as counsel willing to take cases without charge for prospective clients well suited to bring "test" claims.  This is done all the time:  and it seems that when this has been done on behalf of "worthy" interests, this is widely applauded.

     And it is not clear why Gerry would think this argument entirely fair, when his clients in this matter, BCRA sponsors and supporters, enjoy bountiful free legal support and advice.  This includes the legislation, testimony and statements that reform organizations and lawyers draft for reform Members of Congress to submit in their own names.  It certainly includes the free legal services that these organizations—and other firms recruited for this purpose—provide for representation of Congressional interests before regulatory agencies and the courts.  In this case, as noted here previously, the BCRA sponsors have the benefit of seven lawyers and law firms, and the firms providing assistance are among some of the better and better known firms in this area or elsewhere in the country:  Wilmer Cutler, Munger Tolles, and Heller Ehrman.  And it is difficult to imagine that BCRA sponsors always identify, entirely on their own initiative, some problem on which legal assistance is required—say, a regulation promulgated by the FEC that might be challenged in court. 

     3.  CCL did not plan to run these broadcast ads until Bopp presented it with the suggestion.

     This may well be the case, but as noted, these broadcasts would be consistent with its interests and a modest extension of its history of activities, which has included advocacy on this issue and criticism of Senator Snowe for her record on it.  Perhaps, when Bopp suggested it, the proposed ad seemed to CCL to be a good idea.  Perhaps an organization so short on funds would imagine that this litigation would help it to raise money for the ad and still more for other activities.  What it "planned" to do prior to Bopp’s proposal does not bear much on its interest in the ad once it was suggested.

     4. CCL could have run these ads via its PACs, or through non-broadcast media.

     This is simply another way that Gerry and his clients restate their objection to any exception to the grassroots lobbying exception, on either a per se or as-applied basis.  The whole point is that CCL has now concluded that it wants to run these ads through broadcast communications.

     5.  CCL isn’t harmed by the "black-out" imposed by the law on its proposed grassroots lobbying communication.

     This is an astonishing assertion, supported by what is meant to be a shaming reference to Linda Brown and "test cases" that, unlike this one, have real victims, such as Brown v. Board of Education.  No one has to deny the centrality of the rights at stake in Brown, nor the historical significance of the case, to suggest that free speech claims, as a class of claims, do not involve deeply felt and very particular harms.  Hebert sets up a false contrast here to suggest, without arguing the point directly, that this somehow not the case.  It is an easy matter to belittle any claim by opposing it to another, wholly unrelated, but this is a rhetorical trick, not an argument, and it is not how constitutional debate is or should be conducted.

     The "Subtext."  Which brings us to the subtext:  for what initiated this exchange was the reference to Bopp’s "crusading," its goal being to "take down" a law that he "doesn’t like."  I do not doubt Gerry’s intentions here—I know him to be a fine lawyer and individual, and he is also seeking to make a legal point, about the existence of a case or controversy, along with the political one that dominates the Center’s press release.  But his language, along with his selective narrative of the case’s development—will appeal to those progressives who comfort themselves that this attack on McCain-Feingold is a brand of fanaticism.  And this suggested fanaticism is one of ends, not simply means.  It is associated, in the minds of many progressives, with the presumed extremism of the views that the "crusaders" are agitating to air.  In this way, progressives comfort themselves that speech restrictions protect against irresponsible, extreme speech—speech by those thought to be dangerously mistaken in their view, such as Focus on the Family, working through somewhat decrepit "front" organizations like the CCL having barely a penny to its name.    

     Much support for campaign finance regulation, in its contemporary version, is politically anchored in this outlook, as Floyd Abrams has observed:

As the l990’s wore on, I was becomingly increasingly concerned that political liberals (I considered myself one) were too often trading in their First Amendment beliefs to further political or social causes they favored.  It was, I thought, a devil’s trade, which permitted liberals to be true to their normal ideological bent only by sacrificing their libertarian principles….

’It is not hard,’ I wrote, ‘to understand what it is about the First Amendment that has led to the current liberal disenchantment.  The wrong people are speaking…."

Floyd Abrams, Speaking Freely (2005) at  244, 246.

Bob Bauer