Jim Bopp has made his name outside the of the Republican Party inner circle , concentrating his representations on third party "independent" groups bidding to pull free of McCain-Feingold.  Now he is on the attack for the Republican National Committee, at the same time that he continues the fight for the "groups."  The RNC is now, too, a "group" in revolt:  it wants out of the law sponsored by its just defeated nominee and signed into law by its incumbent President and party leader.  It has reached out to Bopp and Bopp has delivered the ambitious, frontal challenge that has characterized all of his wars on McCain-Feingold.

     This lawsuit betrays a lack of Republican confidence that it can master the tools of small donor fundraising.  Fresh from the November defeat, it is reorganizing to raise huge "soft money" sums that the law now disallows.  It aims both low and high, at once:  it wants soft money for state and local elections, where state law permits it, but it also hungers for unrestricted funding for "issue advocacy" and "grassroots lobbying" that it could only finance now with limited "hard money."  Its legal argument is based on language trimmed out of Buckley v. Valeo that the RNC would read to limit all regulatory authority to activities "unambiguously related to the campaign of a particular federal candidate."  424 U.S. 1, 80 (l976).

     RNC counsel Bopp rides these chosen words very hard, just as he does when he tells audiences that Congress, constitutionally enjoined from making "no law" limiting freedom of speech, has essentially no campaign finance regulatory authority at all.  This is committed argument:  no one denies the passion behind it.  It reads developed doctrine out of the analysis:  he essentially treats the precedent to date as one mammoth mistake and he has language from Buckley, he is sure, to prove it. 

     It is a distinctive strategy for making his case, and he has done well with it, especially as the composition of the Court changed.  Now Jim Bopp is headed back for more.  He wagers that if there are retirements to be expected from the election of the new President, they will not come from his side of the Court. 

     McCain-Feingold impales soft money practices on two prongs, one for parties and other for groups, and Bopp is working on taking the sharp edges off both.  As the RNC suit was launched, the Supreme Court took on another Bopp action, this time for a group that produced a documentary movie hostile to Hillary Clinton and proposed to advertise the film within the 30- and 60-day advertising blackout periods.  The ads are regulated "electioneering communications," and yet eligible to run during the "black-out" periods under an exemption for commercial promotions provided under FEC rules.  Bopp is challenging what remains of the regulation of these ads—disclosure and sponsorship identification requirements—but he is effectively seeking to re-open the question of whether they are properly subject to any regulation.  To him, this is about a movie, and Congress cannot limit what is said in movies, nor impose regulations on the ads used to promote them. 

     McCain-Feingold, which stood no chance without the relentless support of McCain and the signature of George Bush, must now survive their departure from party leadership.  The Republicans, in the market for large donors to help restore the financing supremacy they once enjoyed, have linked arms with the "independent groups" and their lawyer.

Bob Bauer