An Exclusive Club

Exiting the FEC, Toner Enters Lucrative Field of Election Law

Posted March 12, 2007 at 6:25pm

Fresh off arguing his first two Supreme Court cases in 1980, Republican election lawyer Jan Baran brought in the backhoes. Looking to mark his first of what would be many legal scuffles with a well-known good government activist, Baran knew exactly how he wanted to spend his spoils — and who really made it possible.

“I built a swimming pool,” Baran recalled. “And called it the ‘Fred Wertheimer Memorial Pool.’”

By his own account, Baran was the first attorney who blazed the trail from the Federal Election Commission to the greener pastures of the election law bar. Since Baran left the agency more than 25 years ago, the demand for the expertise of former agency officials has grown exponentially, leading some lawyers to leave to create successful practices representing not only political parties and candidates from local sheriffs on up, but increasingly more corporations, trade associations and other perhaps less obvious — but extremely lucrative — clients.

Recent FEC departures, election disclosure statements and interviews with law firm partners suggest the gold rush is far from over. In the past three months alone, Larry Norton and Jim Kahl, the agency’s top two career lawyers, left to bulk up the election law practice at Womble Carlyle Sandridge & Rice in Washington, D.C. Michael Toner, a Republican-nominated FEC commissioner, will leave the agency within days to develop the election law and political regulatory practice at Bryan Cave. During the next six months, five of the six commissioner spots will be either vacant or up for Senate reconfirmation.

In 1979, Baran left a job as an aide to the agency’s chairman to set off on his own. At the time, the Republican election law lawyer said federal politics — especially in the House — were less competitive than they are now and not unlike professional baseball: a long, drawn-out playing season followed by plenty of time off. A far cry from the multibillion dollar election cycles of today, he said.

Watergate too had scared off a lot of campaign activity, Baran said. At the time, election lawyers in town could be counted on one hand.

“When I started in Washington in 1975, there were only 140 Republicans in the House,” Baran said. “There was not a lot of suspense about who was going to control the House … campaigns were relatively lethargic events.

“The business community wasn’t engaged at all — if they were going to be engaged in politics, it was on a small basis,” Baran continued. “Things were pretty busy during election years, but during non-election years we got some time off.”

Campaigns and their staffs also made up the rules as they went along. Before the FEC’s creation in the mid-1970s, campaigns were stripped-down versions of their contemporary namesakes, hardly flush with cash and largely unregulated, said Bob Bauer, a Democratic election lawyer who began advising campaigns in 1976 and before was active in Democratic politics.

Bauer recalls holding an internship with the Democratic Senatorial Campaign Committee in the late 1960s. Then located in the Russell Senate Office Building, the committee was experiencing cash-flow issues, making it difficult to make payroll.

“A call was made to a donor, who delivered the shortfall in cash,” Bauer said. “It was a very different regulatory environment than today.”

By the mid-1990s, however, the landscape had changed. Baran said politics and the practice of election- and campaign-related law became a full-time business because of increased regulation and the historic Republican House takeover in 1994.

If developments in the mid-1990s began the maturation of the election law field, the Bipartisan Campaign Reform Act of 2002 largely is credited for ratcheting up the demand for campaign finance lawyers today, as well as increasing election law hourly billings at some firms by a factor of two, three or more during the past half decade.

“While it was a growing industry, it was jolted into complexity by” BCRA, Bauer said. “More rules? More complexities, more uncertainty in the rules’ application and the need for more lawyers.”

Before the measure’s passage, Bauer’s firm, Perkins Coie, billed House and presidential campaigns and political action committees about $1.9 million for work between Jan. 1, 2001, and Dec. 31, 2002.

In the next full post-BCRA cycle, Bauer’s firm was paid $2.5 million. By the 2006 cycle, the amount had shot up to $3.2 million, according to CQ’s PoliticalMoneyLine.com. And with the firm representing all but one of the past year’s major Democratic Senate candidates, whose campaign finance records are not easily searchable, that amount undoubtedly was much, much greater.

Other election law firms appeared to fare just as well during the period. Similar billings at Foley & Lardner, headed up by Republican lawyer Cleta Mitchell, went from roughly $155,000 during the 2002 cycle to $215,000 for the cycle ending Dec. 31, 2006.

At Caplin & Drysdale, Republican lawyer Trevor Potter’s group has gone from taking in $110,000 during the 2002 cycle to more than $230,000 four years later.

In the cycle BCRA became law, Baran’s practice at Wiley Rein billed House and presidential campaigns and political action committees about $560,000. During the 2006 cycle, that total shot up by more than one-third to roughly $780,000.

Baran and other election lawyers acknowledge that the rate of overall growth for their practices largely mimics the electronic data available for campaigns and committees since the passage of BCRA in 2002. What the data fails to reveal, however, is that nearly all firms today make their money not from politicians, but from those looking to whisper in their ears — legally, of course.

“The vast, vast majority of our clients are corporations, trade associations, individual contributors and we do work in all 50 states, Washington, D.C., and Puerto Rico,” Baran said. “All of those jurisdictions have laws that regulate campaigns, lobbying and the entertaining of government officials.”

Former FEC lawyer Larry Noble, now a lawyer at Skadden, Arps, Slate, Meagher & Flom, said that nowadays few private entities make a political move without first calling a campaign finance lawyer.

“There is real growth in this area,” Noble said. “There is a greater awareness on the part of companies and others that get involved in the process that there are a bunch of complex laws out there.”

And Bryan Cave, the firm that recently plucked Toner off the commission to create an election law practice from scratch, is banking on that potential. In addition to promoting his election law work, the firm will market Toner’s expertise along with its white-collar criminal defense, securities law and other corporate-related practice areas.

“We were interested in [election law] for a couple of reasons. We think it is a complement to our existing lobbying practice but, more importantly, we think it is a complement to our existing law practice,” said Rodney Page, a Bryan Cave partner who recruits for the firm. “Every election cycle there’s a whole new set of issues … the issues get layered on top of each other, so that it becomes more complex as it goes along.

He added: “I don’t expect that to reverse course.”

Baran too is certain that the need for campaign finance lawyers will not dwindle.

“I’ve got several very capable, young lawyers in this group with growing families,” Baran said. “I assure them their professional future is very promising.”