BCRA Costs Run in Millions

Posted October 10, 2003 at 5:31pm

Three parties involved in the ongoing lawsuit over campaign finance reform spent a total of $5 million litigating the case through early September, when the Supreme Court heard oral arguments in McConnell v. FEC.

They and others intimately involved in the legal battle estimate that by the time the high court issues a ruling on the constitutionality of the Bipartisan Campaign Reform Act of 2002, the total cost of the case will easily exceed the $10 million mark.

“Everything in this case has been kind of unique — even the cost,” said Valle Simms Dutcher, general counsel for the Southeastern Legal Foundation, an Atlanta-based nonprofit that champions conservative causes through the courts and is paying former Independent Counsel Kenneth Starr’s legal bills in the case. The group represented several plaintiffs in the McConnell suit.

Tax records show that the SLF paid Starr’s law firm, Kirkland & Ellis, $426,537 between July 1, 2001, and the end of June 2002, but SLF representatives told Roll Call that the group’s total legal tab — which includes the fees of both in-house lawyers and fees from Kirkland & Ellis — is closer to the $2 million mark.

The SLF, which derives its funds from contributions of undisclosed individuals and has an annual budget of around $2.5 million according to publicly available tax records, is not alone.

As they await the Supreme Court’s decision in the historic campaign finance case, others involved in McConnell v. FEC lawsuit are also tallying mammoth legal bills stemming from hundreds of depositions, dozens of expert witnesses, travel costs, and printing and copying charges, not to mention myriad other incidental expenses associated with the case. A decision in the case may not come until mid-December.

“The Madison Center incurred almost a million dollars worth of attorney fees and costs and expenses,” said lawyer James Bopp, who represented 10 clients on behalf of the James Madison Center for Free Speech, a nonprofit affiliated with Sen. Mitch McConnell (R-Ky.), who helped to found the group.

The Madison Center’s clients in the case include the National Right to Life Committee, the Club for Growth, Rep. Mike Pence (R-Ind.), Alabama Attorney General Bill Pryor (R) and the Libertarian National Committee.

Federal Election Commission officials estimate the agency spent “in the neighborhood” of $2 million defending the McCain-Feingold bill in court — and that’s only a portion of the tab taxpayers will help pick up. Justice Department officials also spent considerable time defending the law in court — culminating in Solicitor General Ted Olson’s arguments before the high court last month. Justice officials, however, declined to estimate the cost of those efforts.

An FEC spokesman pointed out that estimating such costs is an inexact science because the government works differently than a corporate law firm and they don’t have a billable hour system in the government.

Tallying total costs is complicated for other reasons as well.

For instance, a GS-6/8 paralegal or intern might spend eight hours at the copy machine on BCRA material, whereas a GS-15 team leader might spend only two hours at the keyboard and law books on a particular point of law relating to BCRA, but actually has the larger responsibility and burden.

Putting a total price tag on the multimillion-dollar lawsuit is a more difficult — if not impossible — task, as many groups and agencies involved on both sides of the landmark case refused to discuss their bills.

In addition to the Justice Department, the National Rifle Association, the American Center for Law and Justice, the Brennan Center for Justice and the AFL-CIO all declined to estimate their costs.

Republican National Committee spokeswoman Christine Iverson also said she couldn’t provide a financial figure for the RNC’s involvement as a plaintiff in the case — but FEC records suggest that the party’s share of legal expenses have been substantial.

In September, Covington & Burling partner Bobby Burchfield argued against the law’s soft-money prohibitions before the U.S. Supreme Court on behalf of the RNC and several state political parties. FEC records show that the RNC paid Covington & Burling, which also assists the party with other compliance matters aside from the lawsuit, $1.96 million during an eight-month period from January to August 2003 — a whopping 34 percent increase over the $1.3 million the RNC paid the firm over a 24-month period in the 2002 election cycle.

Jon Bonifaz, a lawyer with the National Voting Rights Institute which challenged the higher hard-money limits in the law on behalf of the non-wealthy, said it would be impossible to estimate what the case cost his foundation, because while he and others invested significant time in the case, they don’t engage in keeping hourly rates like private law firms.

Bonifaz criticized Southeastern Legal Foundation’s payments to Starr, saying they illustrate the very reason his group went to court to challenge the McCain-Feingold bill’s higher contribution limits in the first place.

“Our overall budget for a fiscal year is $1 million,” Bonifaz said. “There’s no way we could put $2 million to $2.5 million into one case, only further highlighting the need for our presence in this. If we just leave it up to the Ken Starrs and the corporate-made attorneys, then the arguments on equality and the poor and the non-wealthy will not be made.”

Wilmer, Cutler & Pickering, the D.C. law firm which represented Sens. John McCain (R-Ariz.) and Russ Feingold (D-Wis.) and Reps. Christopher Shays (R-Conn.) and Marty Meehan (D-Mass.) and other so-called “defendant intervenors” in the case provided most, if not all, of their legal services on a pro bono basis, sources close to their clients said.

“It’s genuinely a law firm that has a long commitment to this issue in general,” explained one lawyer, who said that Seth Waxman and others donated their time and energy to the case because it’s “something they believe they’re on the right side of.”

Beyond that, getting their names out in a high-profile Supreme Court case may end up bringing more business to the firm, but ultimately “they lose far more money than they will ever get back” arguing the case, the source explained.

Bopp — who has been involved in dozens of high-profile campaign finance and speech cases over the years — freely admits that McConnell v. FEC is by far the most expensive case in which he’s ever been involved, and noted he has little hope of recovering attorney’s fees once the case is resolved because “there’s no law allowing it.”

“The law in America is you bear your own attorney fees, costs and expenses and then there are exceptions to that. One exception is a federal law which allows for awarding of attorney fees to prevailing plaintiffs whose constitutional rights have been violated by states,” Bopp said.

While a peek at the group’s most recently available IRS filings shows it raised only about $200,000 for the 2002 calendar year — and has received a total of about $300,000 in gifts and grants since 1998 — Bopp said the group continues to make “special efforts to fundraise to pay the bill.”

The SLF is also contemplating how it’s going to pay off the whopping legal fees.

“It is a gigantic and ongoing burden to try and figure out how to bear all the costs. Obviously it was a case on a huge scale and it was very hard to contain costs because there were so many groups involved,” said Dutcher.

Like Bopp, SLF’s $2 million legal bill makes it the most expensive case in organization’s history — more costly than the group’s successful effort to disbar former President Bill Clinton or the group’s involvement in a census battle that culminated in the Supreme Court declaring sampling constitutionally prohibited for the purposes of Congressional apportionment.

No one thought the case would be cheap. In fact, the Christian Coalition pulled out of the lawsuit early on in September 2002 citing mounting legal costs as a concern — but those who saw it through say it was worth it.

“The foundation in its history has never undertaken anything of this scope,” Dutcher said. “We’ll go door-to-door if necessary to try to pay off the litigation costs … We did the right thing. There’s no regrets, but there’s a lot of hard work still ahead.”