Ann Southworth is a pioneering scholar of the conservative legal movement. Her 2008 book, Lawyers of the Right: Professionalizing the Conservative Coalition, offered path-breaking insights into the evolution of the movement, charting its origins, features, and fractures. Her new book, Big Money Unleashed: The Campaign to Deregulate Election Spending, is a worthy—and timely—successor that explores one facet of what the movement has achieved. In it, Southworth examines the decades-long legal campaign to transform the First Amendment into a vehicle to enable unfettered corporate influence in politics. This campaign culminated in the 2010 Supreme Court case, Citizens United v. FEC, which gave corporations the right to spend unlimited amounts on candidates for political office, overruling precedent to strike down a critical provision of the Bipartisan Campaign Reform Act 2002 (BCRA), otherwise known as the McCain-Feingold law.
Southworth’s aim is not to explain or defend the doctrine resulting from this campaign, but rather to uncover the “process that generated” it. (P. 2.) She does so by analyzing “how lawyers and other key actors worked with the justices to create that law, borrowing a litigation strategy pioneered by the NAACP Legal Defense Fund to dismantle racial segregation and using it to advance a very different type of cause.” (P. 2.) Southworth mobilizes a trove of primary research, which includes data on the political alignments and financial supporters of organizations filing briefs in Roberts Court campaign finance cases (Citizens United (2010), Arizona Free Enterprise Club v. Bennett (2011), and McCutcheon v. FEC (2014)), language analysis of arguments in briefs filed in twelve Supreme Court cases since the 1970s, and interviews with fifty-two lawyers who participated on both sides of the campaign. It is a testament to Southworth’s careful scholarship and status as a scholar both sides respect that she was able to gain access to lawyers on this deeply polarizing political issue.
The result is a rich and penetrating account of how lawyers on the right mobilize law for social change in contemporary America, using a playbook honed by left-wing organizations during the Civil Rights Era to weaken progressive causes and political power. It is a story about legal strategy and tactics, as well as about how they intermesh with larger framing battles to transform public attitudes. In this regard, as Southworth puts it, the “challengers” of campaign finance law “characterized the controversy as a fight between elites, who sought to limit political expression, and ordinary Americans who needed greater freedom to speak about elections—notwithstanding that some of these lawsuits challenged limits on contributions and spending that far exceeded amounts that fit the budgets of most ordinary Americans.” (P. 8.) It is the tension between the campaign’s publicly proclaimed goals—helping “ordinary Americans”—and its consequences—“unleashing” corporate money in politics—that forms the book’s central storyline.
Lawyers are not the only protagonists in this story, but they play critical roles. In Part One of the book, Southworth rigorously documents their roles through each phase of the campaign, which unfolded through a legal-political network that gradually shifted focus from early efforts to reduce barriers to restrictions on nonprofit election advocacy to a full First Amendment assault on corporate spending restrictions, successfully equating money with “speech.” It begins in the 1970s, when “entrepreneurial scholars and lawyers developed some of the ideas necessary to create new constitutional law” (P. 22), centered on pamphlets drafted by Yale’s Ralph Winter published by the American Enterprise Institute, supplying “the foundational arguments” to challenge the constitutionality of the Federal Election Campaign Act (FECA). (P. 35.) These pamphlets, alongside Martin Redish’s 1971 law review article arguing that campaign finance deregulation promoted the “needs of an effective democracy,” provided intellectual inspiration for the 1976 legal challenge to the FECA in Buckley v. Valeo, which upheld limitations on contributions. This suit was partially funded by Charles Koch, who had a personal interest in wanting to make a large contribution to the Libertarian presidential candidate and urged business leaders to join his fight for “restoration of the free market.” (P. 43.)
Although these early legal efforts were not “particularly partisan” (P. 22), they grew increasingly so as politics became more polarized and big money fundraising took on greater significance to both the Republican and Democratic Parties. Against this backdrop, Southworth documents how the legal attack on campaign finance regulation “developed a more coordinated and incremental approach” modeled on Brown, repackaging “ideas about the meaning of the First Amendment for a lay audience, working with politicians and media figures to popularize those ideas.” (P. 22.) After the 1995 introduction of a comprehensive campaign finance reform bill in Congress, the Federalist Society launched its Free Speech and Election Law Practice Group. The group published newsletters featuring Senator Mitch McConnell, who viewed campaign finance regulation as “a threat to the fractious Republican coalition and its fundraising strategies” (P. 51), and James Bopp, Jr., a conservative antiabortion lawyer from Indiana, who criticized the Federal Election Commission for the “20-year war it has waged on the First Amendment” for prosecuting the Christian Coalition for election violations. (P. 58.)
Bopp is a pivotal figure in the campaign to challenge campaign finance laws. An Indiana Law School graduate and general counsel of the National Right to Life Committee, Bopp turned toward campaign finance litigation to expand the influence of socially conservative nonprofit groups advocating against abortion and same-sex marriage. Toward that end, in 1997, he started the James Madison Center for Free Speech, which received funding from the Republican National Committee and right-wing foundations sponsored by the Devos, Pope, and Mercer families. (P. 64.) Southworth explores the puzzle of how Bopp, a social conservative committed to the antiabortion cause (who would later mastermind the successful attack on Roe v. Wade), became chief architect of Citizens United, representing the nonprofit group in its effort to air Hillary: The Movie, a tendentious portrait of Clinton due to air right before the 2008 election. Citizens United could not qualify for an exception to the BCRA’s electioneering provision because it had received too much for-profit corporate funds. Accordingly, it offered a vehicle for directly challenging restrictions on corporate spending. In advancing this case, Bopp used some inflammatory arguments, emphasizing in lower court that Hillary: The Movie was the “functional equivalent of a book” and that if the government could restrict the movie it could “engage in high-tech ‘book burnings’ without restriction,” an argument echoed by Ted Olson (George W. Bush’s Solicitor General and lead marriage equality lawyer) when he took over on appeal, and by Justices Alito and Kennedy in oral argument (P. 77)—despite the fact that restricting books was not at issue in the case.
Southworth states that Bopp viewed Citizens United as a vehicle for achieving his primary aim, which was “overturning the BCRA’s disclosure requirements, so that his clients could run ads without including a disclaimer indicating who paid for the communication.” (P. 106.) From this perspective, the case was conceived as one designed to promote unaccountable corporate influence to advance right-wing causes. In this sense, it became a Trojan Horse for broader conservative agendas. Southworth (drawing on Mary Ziegler) suggests that Bopp decided to push the bigger argument in Citizens United—that it was unconstitutional for Congress to limit corporate spending in any way—as part of a tacit bargain with the Republican establishment, which had grown squeamish about the politics of abortion, to ensure party support for nominating judges to the Supreme Court committed to overturning Roe. (P. 108.)
Citizens United also proved to be the genie in a bottle: unleashing not only money but an expansive set of ideas about free speech that morphed in dangerous undemocratic directions. One of the most compelling questions raised by Southworth’s account is how much we should hold lawyers like Bopp accountable for the consequences of extending the First Amendment to corporate political spending. These consequences were not merely doctrinal: they included public reframing of corporate deregulation as a victory for working people and a radical expansion—some might say weaponization—of the First Amendment as a tool for advancing a broader far-right agenda. This broader turn highlights three important issues raised by Southworth’s book.
The first is the paradox of nonelite lawyers advancing a fundamentally elite legal project through effective legal framing that broke down barriers for corporations to capture American politics. As Southworth documents, campaign finance challengers were generally less elite than their reformist counterparts, with “[a]ll but one of the lawyers for groups associated with the Republican Party’s populist elements identified themselves as Catholics or evangelical Protestants, and most had attended regional or local law schools.” (P. 26.) These lawyers spearheaded the litigation; they also participated in reframing the issue. Southworth emphasizes how challengers used “frames strategically” to change the law (P. 132), charting the frequency of terms like “censorship” in challenger briefs and Court opinions. These frames demonstrated that lawyers operated in different “constitutional universes,” comprised of “polarized networks of activists who champion different visions of the First Amendment.” (P. 150.) What is most striking—and troubling—about this effort is how these lawyers repackaged the deregulatory project of billionaire libertarians as a campaign to help the little guy. After the Citizens United ruling, Bopp proclaimed that it vindicated “the ability of average citizens to participate in our democracy.” (P. 82.) This sort of cynical reframing has become a hallmark of Trumpist appeals to working class Americans.
The second issue revolves around the ethical accountability of the lawyers who served as architects of the campaign. Left-wing cause lawyers coming out of the 1960s were vigorously attacked for instrumentalizing law in the service of political agendas—for engaging in legal activism. While these attacks came from notable conservatives (Attorney General Ed Meese sought to close down LSC for its impact work), they also emanated from within the progressive legal movement. In the chapter on “accountability,” Southworth shows that conservative lawyers generally lack this internal self-critique. As she put it, the challenger lawyers “defended their own roles in this litigation campaign,” characterizing themselves as “part of an admirable enterprise in which advocates helped right-thinking justices read the Constitution correctly to protect rights properly found there—not one in which lawyers and judges manufactured law.” (P. 163.) These lawyers were “unabashed about—indeed, proud of—their roles constructing the litigation campaign” and creating test cases to “move the law.” (P. 175.) Southworth does document dissenting views, which all came from reformer lawyers on the other side of the issue. For example, some interviewed lawyers questioned whether Bopp’s campaign “served “interests of social conservatives or, more generally, regular people of modest means” (P. 171), suggesting he had a conflict of interest given that he served on the RNC that funded litigation, along with people like the Koch Brothers, Sheldon Adelson, and other “wealthy donors” who used “populist energy to achieve their own deregulatory objectives.” (P. 173.) NAACP lawyers were skewered for “serving two masters” by pursuing an integration agenda claimed to favor elite white interests over the needs of the black community. If that posed an ethical challenge to left-wing cause lawyers, it is hard to see how the work of Bopp and other lawyers to serve the interests of corporate funders doesn’t raise a serious accountability issue. The absence of an internal conservative critique of lawyers like Bopp suggests that ethical critiques of cause lawyers are deeply politicized.
The third issue is the role of campaign finance lawyers in laying the groundwork for processes of autocratization leading to Trump. It is important to consider the degree to which the lawyer-led reformulation of the First Amendment as the uber legal principle underwriting—and tying together—the success of conservative causes—from corporate campaign speech to religious liberty—has also built a bridge to political extremism and rule-of-law attacks. It is not sheer coincidence, as Southworth mentions, that some of the lawyers involved in challenging campaign finance regulation, particularly key architect Bopp (but also Cleta Mitchell and John Eastman) (P. 211), figured prominently in the 2020 Stop the Steal campaign. These lawyers were central figures in the “polarized” legal networks producing Citizens United (P. 91), but also extending the free speech foundations of the case into the dangerous territory of conspiracy theory and disinformation.
In the end, Southworth’s historical story has important contemporary implications. As America faces the real prospect of a second Trump presidency, understanding the trajectory of the conservative legal movement is of critical democratic importance. In this regard, Southworth’s book provides necessary context to the current conflict within the movement between gatekeepers of mainstream conservativism and the rule of law versus “MAGA” lawyers intent on delivering Trump to the White House and mobilizing power to undermine traditional institutional checks, like DOJ independence, in the service of prosecuting enemies and eroding the rule of law. While Southworth does not address this conflict directly, her timely book provides insight into its origins—and thus helps clarify what legal conservatives might do to reclaim their movement from dangerous extremism.
