Appellate Practice

Which Lawyer Won Citizens United? Stories Differ on Perspective

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Which lawyer should get the credit for last week’s U.S. Supreme Court decision finding that corporations have a First Amendment right to spend money on campaign ads on behalf of political candidates? Was it James Bopp, the lawyer who took Citizens United v. Federal Election Commission through appeals and to the U.S. Supreme Court? Or was it Ted Olson, who replaced Bopp and focused on the larger constitutional issues?

The answer depends on perspective. A National Law Journal story emphasizes Olson’s decision to focus on overturning campaign finance precedent—an avenue that Bopp had not pursued initially—while the New York Times emphasizes Bopp’s larger-scale and longtime assault on campaign finance laws.

The Supreme Court decision upheld the right of a conservative group known as Citizens United to broadcast a 90-minute video criticizing Hillary Clinton. To reach that result, the Supreme Court overturned a 1990 Supreme Court decision, Austin v. Michigan Chamber of Commerce, which had upheld a ban on corporate spending to influence state races.

When Bopp took on the litigation, he focused on a disclaimer requirement that may have forced Citizens United to identify itself in ads promoting the film as responsible for its content. Bopp’s first Supreme Court filing in the case didn’t even cite the Austin decision, the National Law Journal says.

Citizens United general counsel Michael Boos told the NLJ about the change in legal strategy when the group hired Olson. “Prior to Ted coming on the case, we never focused on Austin,” Boos told the legal newspaper. “It was Ted’s perception that our strongest case was on the movie itself, not the disclaimer. … He turned out to be right.”

The New York Times, on the other hand, focuses on Bopp’s long-term legal strategy to challenge campaign finance laws. Bopp told the ABA Journal in a profile published in 2006 that he has brought or defended 75 campaign finance and election law cases in 35 states.

One of Bopp’s pending cases in the U.S. Court of Appeals for the District of Columbia Circuit addresses a question not answered in Citizens United: whether the First Amendment also gives corporations the right to donate money directly to candidates, the New York Times says.

Election law expert Richard Hasen of Loyola Law School told the Times that the Citizens United case “was really Jim’s brainchild.”

“He has manufactured these cases to present certain questions to the Supreme Court in a certain order and achieve a certain result,” Hasen said. “He is a litigation machine.”

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