By now it should come as no surprise that anti-choice activists are engaged in a targeted and specific legal strategy to roll-back abortion rights. After all, it has proven to be more successful to slowly and steadily chip away at access to abortion care via judicial opinion than through any attempts at outright bans in state legislatures.
But what might come as more of a surprise is the fact that a key part of that legal strategy involves attacking campaign finance law. In fact the pro-corporate personhood movement and the anti-woman, anti-choice movement share the same attorney: conservative campaign-finance crusader and abortion-rights foe James Bopp Jr.
Bopp is most famous as the legal architect behind the Citizens United decision but his ties to the anti-choice world run deep. Bopp's clients include the National Organization for Marriage, National Right to Life Committee, Susan B. Anthony List, and Focus on the Family, just to name a few. And it’s worth remembering that the Citizens United crusade started as an anti-Hilary Clinton smear campaign dressed up as a free speech movement. Bopp is, by all accounts, the principle litigator for conservative causes.
Since his victory in Citizens United Bopp has traveled the country looking to challenge statewide campaign finance disclosure laws. He does this through actions filed on behalf of anti-choice and anti-marriage equality activist groups. The goal is two-fold: take any victories in decisions that turn back corporate spending disclosure requirements and create conflicting precedents in competing jurisdictions to facilitate Supreme Court review to tie down any lose ends left by the Citizens United decision.
That’s exactly what Bopp has done in Washington where he led the challenge to that state’s disclosure law. In Human Life of Washington v. Brumsickle, Bopp argued that the state’s requirement that advocacy groups like Human Life of Washington register with the state and report its financial activities had a chilling effect on groups’ First Amendment speech rights and was therefore unconstitutional. The Ninth Circuit disagreed and last month the Supreme Court denied review of the decision which means the Ninth Circuit decision stands. And since the Supreme Court refused to review this decision, Bopp needs a conflicting decision from a conflicting jurisdiction to force the issue before the Court.
Enter Iowa and the Eighth Circuit Court of Appeals. There, Bopp represents Iowa Right to Life in a challenge to Iowa campaign finance law that is strikingly similar to Human Life of Washington case. It’s a circuit that tends to produce conservative-friendly decisions and, as it so happens, is chock-full of conservative advocacy groups with an appetite for litigation.
In each of the challenges Bopp’s argument is the same. When states compel groups like Iowa Right to Life to get board approval for political spending and then to disclose those dollars and their donors to regulators and the public, it puts an undue burden on their First Amendment speech rights. Instead, Bopp argues Iowa Right to Life and other corporate groups should be able to spend freely and without accountability at the state level thanks to the precedent set by Citizens United.
The fact that each state regulates campaign spending differently means plenty of opportunities for Bopp to challenge individual laws and crack any regulatory scheme. This then forces a federal appellate court to find some consistency among the differing state approaches in answering the federal constitutional question of whether disclosure burdens speech rights. If it sounds familiar it should. It's the same litigation strategy the right has used with abortion access for decades. Look at the 20-week abortion bans, for example or the 5th Circuit decision on trans-vaginal ultrasounds. This is how the right makes abortion law and it’s being exacerbated by the results of the Citizens United decision.
If Bopp is successful it means even more undisclosed campaign spending at the state level. This means more campaign materials containing outright lies linking abortion to breast cancer, for example, since outside ads are not governed by consumer protection limitations or so called "truth in advertising" regulations. It means an open and direct pipeline to groups like the Catholic Church that can't directly spend on political campaigns but sure are eager to influence public policy and simply need a surrogate to do so. And it means the battle to protect abortion access just got a whole lot more expensive.