Brian Howey: Bopp at the Center of U.S., Indiana Campaign Finance Cases

WASHINGTON, DC - By the end of June, the U.S. Supreme Court will issue a decision that could significantly alter campaign finance law and change the political television advertising lineup prior to an election. And in that same time period, the Allen County Election Board is expected to rule on the case where Republican Fort Wayne mayoral candidate Matt Kelty listed $158,000 in campaign funds from himself, only to issue an addenda in which he revealed the money actually came from three supporters.

At the center of these two cases that will impact U.S. and Indiana campaign law is Terre Haute attorney James Bopp Jr.

Kelty’s bombshell immediately put his fledgling grassroots campaign in a precarious state. So he called Bopp, who studied the case and the opined, “As long as he has lawful possession of the funds, he can make loans to the campaign. Candidates do that all the time.”

In fact, Bopp argued that Kelty should be lauded for stepping forward himself to reveal the source of his loans. “He voluntarily disclosed this information, which is unprecedented,” Bopp said. “No candidate does that.”

The case is unique in that a question is being raised about a candidate loaning himself money, according to Bopp. What Kelty did was similar to taking out a line of credit on his own or charging money to his credit card and then using those funds in the campaign. “It’s novel because no one has ever made this claim,” Bopp said. “I can’t see how he can be held at fault. It shouldn’t go anywhere.” He insisted that the problem lies with the legislature.

The election board is expected to meet sometime during the week of June 18. Few have disputed Bopp’s evaluation. The big question for Kelty is whether voters will buy it.

Voters rejected the re-election of State Rep. Brooks LaPlante in 2004 after he failed to report $35,000 he dumped into his 2002 upset of State Rep. Vern Tincher.

The U.S. Supreme Court is set to rule on a case that revolves around the type of ads an interest group can air during the “blackout” period 60 days before a general election and 30 days before a primary. The decision is expected by June 29.

In the Federal Election Commission v. Wisconsin Right to Life, the pro-life group ran television spots in 2004 urging Wisconsin voters to tell Democratic Sen. Russell Feingold not to block President Bush’s judicial nominations through a filibuster.

The problem is that the ads went up in the fall during the 60-day blackout period that was established by the 2002 campaign finance reform law -- a violation of the ban on election communications during that timeframe, according to the FEC. The lawyer for Wisconsin Right to Life - Bopp - asserts that the ads constituted grassroots lobbying and should be protected as free speech.

“There’s no discussion about the election,” Bopp, a partner at Bopp, Coleson, Bostrom in Terre Haute, said. “It was about an upcoming vote in Congress. This ad was all about lobbying and not about an election, so it can’t be prohibited by campaign finance laws.”

During an intense, lively oral argument before the Supreme Court on April 25, Bopp was pressed by justices who questioned whether the timing and content of the ad were designed to influence the election -- in violation of campaign finance reforms codified through the McCain-Feingold bill that Congress passed in 2002. The measure was authored by Feingold and Sen. John McCain.

“If we agree with you in this case, good-bye McCain-Feingold,” Justice Stephen Breyer told Bopp. “Maybe we should do it up front. That’s what you advocate.”

Even though the ad doesn’t encourage Wisconsin residents to vote against Feingold, Justice David Souter said that they would be able to connect the dots and understand that the spot was ultimately intended to influence their decision at the ballot box.

“But doesn’t any communication depend upon the understanding of the listener?” Souter asked Bopp. “Can we even sensibly talk about what a statement means or an advertisement means without understanding the context in terms of the listener’s understanding?”

Bopp responded, “The test is, what do the words say? What does the ad say? What does the speech say?”

Souter answered: “No. The question is what do the words mean.”

Later, Souter said: “So your position is that we ignore context because no one -- because the voters aren’t smart enough to have a context?”

Bopp answered, “No, that we be allowed to speak so we can give that information to the voters.”

In an exchange with Justice Antonin Scalia, Bopp outlined why the anti-abortion group’s spots could not be defined as electioneering: “The ads do not mention an election, candidacy, political party, challenger or the official character, qualifications or fitness for office.”

“I am cautiously optimistic that there will be a carve-out for grass roots lobbying or the court might strike the whole blackout period down,” Bopp said. “Either one will be a major change” in campaign finance law.

Column note: Mark Schoeff Jr., Washington correspondent for The Howey Political Report, contributed to this column.

Howey is publisher of The Howey Political Report at www.howeypolitics.com

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