Two E-Books Reveal Behind-the-Scenes Lawyering in McCutcheon Case

Alabama businessman Sean McCutcheon says that dealing with his own lawyers was “the biggest problem I faced” in his battle against campaign finance laws that resulted in the landmark April 2 U.S. Supreme Court decision bearing his name.

McCutcheon, the winning lead plaintiff in McCutcheon v. Federal Election Commission, made the comment Monday as his e-book about the litigation was about to be published, less than a week after the landmark decision was handed down. Another e-book about the case, When Money Speaks, became available last week, just 36 hours after the decision. It also discusses behind-the-scenes maneuvering between lawyers on McCutcheon’s side of the case.

“You can’t straddle the fence with that group. You have to say yes or no,” McCutcheon said in an interview Monday. “They’re ambitious, all of them.” Friends had warned him that responding to the news media would be the most difficult part of his high-profile legal effort. “That turned out to be easy,” McCutcheon said. Instead, he added, the lawyering was “the hardest thing to deal with.”

McCutcheon did not go into details, but acknowledged that his book recounts the 11th hour switch away from longtime Republican National Committee lawyer James Bopp Jr. as the advocate who would argue the case at the Supreme Court for both the committee and McCutcheon. Erin Murphy of Bancroft, a protégé of former solicitor general Paul Clement, argued instead.

When Money Speaks, the other book about the case issued last week, reported that Murphy was picked in part because she had served as a law clerk to Chief Justice John Roberts Jr. in 2009, when a predecessor campaign finance case, Citizens United v. Federal Election Commission, was first argued. The book quotes other lawyers in the case as suggesting that Bopp’s approach to the case was at odds with McCutcheon’s interests in unspecified ways.

Bopp ended up sitting in the spectator’s gallery instead of at the counsel table last October, according to the book, and he voiced “great disappointment” about not getting to argue the case.

The publication of two books about the McCutcheon case, almost before the ink is dry on the court’s ruling, is an undisputed first in Supreme Court historiography.

McCutcheon’s book, titled Outsider Inside the Supreme Court, details his life and career as an Alabama businessman who became interested in politics.

When his desire to contribute money to a large number of candidates ran afoul of federal campaign laws, McCutcheon decided to act. “It doesn’t make any sense that you can only give that amount of money to a few candidates,” he wrote, in his first chapter, available at his web site. “It’s difficult for anyone to justify just how much free speech is too much free speech.”

When Money Speaks is by First Amendment scholars Ronald Collins of the University of Washington School of Law and David Skover of Seattle University School of Law.

“We wrote for 18 hours straight” on April 9, the day the court issued the decision, Collins said in an interview. “Ninety percent of it was written ahead,” he added.

Collins and Skover began writing the 80,000-word book seven months ago, detailing the long history of campaign regulation and the First Amendment, along with profiles of the various players in the case and commentary by experts on both sides. The book scrupulously presents the range of positions on the contentious issue.

Another element in the Collins-Skover book is the conflict within the American Civil Liberties Union over campaign finance cases like McCutcheon. The ACLU has long embraced the view that the First Amendment bars most campaign finance restrictions. But as the power of money in politics has increased, leaders within the ACLU have reconsidered that position, announcing in 2010—after Citizens United—that “reasonable limits” on campaign contributions to candidates were acceptable. But in McCutcheon, Collns and Skover wrote, “the national ACLU pled the proverbial Fifth and went silent.” It did not file a brief in the case.

In an article today in the Washington Independent Review of Books, Collins said he felt like “a sinner in a brothel” writing an e-book, as someone who loves—and has written—print books for years. But the modern demands of immediacy drew him to it, Collins wrote.

“If we were to publish a print book, our work could not come out for three to eight months after the Supreme Court handed down its decision,” Collins wrote. “True, writing this book was intense and took a lot of concentrated work given the short turnaround time. But we inserted text almost up to the point at which the work was released. And we can revise our e-book at any time after publication to correct mistakes.” He added, “With every new technology, something is lost, but also gained.”

Contact Tony Mauro at tmauro@alm.com.

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