The Reform of Campaign Expert Bauer

Posted October 9, 2009 at 6:20pm

Be careful what you wish for.

That’s what Bob Bauer undoubtedly has been mumbling to himself periodically in recent months, as an obscure court case presents the next chapter in the rapid ideological mellowing of President Barack Obama’s previously feisty personal lawyer.

“He has a long history of speaking his mind on campaign finance issues,— said Rick Hasen, a professor at Loyola Law School in Los Angeles. “Now, he also has clients that have legal and political issues that could to some extent trim what he can say.—

A veteran campaign hand, Bauer shot to national prominence last year as Obama’s combative election lawyer, sparring with his GOP counterpart and famously going toe-to-toe in a conference call with another hard-charging Democrat: Hillary Rodham Clinton aide Howard Wolfson.

At times during the past decade, Bauer’s law firm, Perkins Coie, has appeared as the de facto legal shop of the Democratic Party, representing Congressional candidates, the Democratic Congressional Campaign Committee and the Democratic Senatorial Campaign Committee.

As his prize for helping Obama win in November, Bauer was named the top lawyer at the Democratic National Committee earlier this year. Since then, the national party committee has written checks to Perkins Coie totaling more than $200,000, according to Federal Election Commission data. Overall since 2001, Bauer’s firm has raked in $13.9 million from political committees, an impressive sum considering it does not include Senate campaigns, which are not required to file electronic accounting records.

Although likely very lucrative, Bauer’s payday has apparently not been entirely free. Arguably once one of the fiercest— and most vocal — critics of attempts by lawmakers and the reform community to rein in political spending, Bauer has faded from the limelight in recent months, abandoning his once-loud criticism for a more moderate ideological approach since becoming the party’s unofficial legal face.

Bauer, the DNC and the White House all declined to comment for this story.

In a 2006 opinion piece in this newspaper, Bauer knocked the reform community’s biggest legislative victory to date: the Bipartisan Campaign Reform Act of 2002. In the piece, Bauer and then-FEC Chairman Michael Toner, a Republican, bashed a provision involving broadcast advertising “blackout— periods in the weeks before federal elections.

“This broadcast ban has proved distasteful to the left and the right, which have built an extraordinary alliance against its extension to even constitutionally protected ‘grass-roots lobbying’ on issues,— the bipartisan duo wrote.

For his efforts, Bauer for years was a popular target of the campaign finance reform community, including Democracy 21 President Fred Wertheimer. In a 2005 letter, Wertheimer asked now-Majority Leader Harry Reid (D-Nev.) to distance himself from Bauer’s attempts to undue BCRA through court challenges.

“In light of Mr. Bauer’s efforts to rally support for declaring an essential portion of BCRA unconstitutional, Democracy 21 strongly urges you to publicly disassociate yourself from Mr. Bauer’s position and reaffirm your support for BCRA and its constitutionality,— Wertheimer wrote to Reid on Oct. 26, 2005.

Wertheimer declined to comment for this story.

But atop his new perch at the Democratic Party, Bauer has taken a decidedly less laissez-faire stance in arguing on behalf of the national party. In a recent Supreme Court friend-of-the-court brief, Bauer argued that a loosening of spending rules involving corporations would be “a heightened sense of corruption — both corruption in fact and corruption in appearance.—

“Bob Bauer was forced to recalibrate his positions when he became a counselor to the president because the president’s position on campaign finance law is more reform-oriented than Bob’s traditionally has been,— a campaign finance lawyer said. “Bauer has been pulling back somewhat because previously he was pretty vocal about how he thought the laws went too far.—

Bauer’s abrupt departure from his once-popular blog, Moresoftmoneyhardlaw.com, also is cited frequently as an example of his swift ideological moderation in recent months. For years, Bauer used his blog as a primary sounding board for anti-reform rhetoric. But the one-time firebrand effectively signed off to his blog earlier this year, telling his readers “the time available to me for writing has grown ever scarcer.—

In one pointed 2005 blog post titled, “The Politics and Reform and the ‘Dark Ages,’— Bauer wrote that “campaign finance reform politics has turned strange and unfamiliar. … Some help is needed: a Yoda to explain what alien forces have transformed for the worse the universe of good intentions and regulated politics.—

But an ongoing court battle involving EMILY’s List may represent Bauer’s dramatic transformation since Obama was sworn in last January. The FEC has until Nov. 2 to appeal a recent court decision that created a substantial soft-money loophole for nonprofit organizations that are involved in federal elections.

EMILY’s List’s lawyer in the case? Bob Bauer.

Although most experts agree the case’s judges overreached in deciding it, sources say the decision is causing Bauer considerable discomfort. The case involving the reproductive rights group apparently is testing the delicate détente between the DNC’s lawyer, party insiders and the campaign finance community — albeit privately, for now.

“He filed this case years ago at a time when Democrats still didn’t likeMcCain-Feingold [and] groups like EMILY’s List were desperately trying tofind ways to get soft money back into the system,— a Republican campaign finance lawyer said. “In retrospect, they clearly should have pulled the plug on the case, but they didn’t and now the whole landscape is different.—

“Democrats are worried about soft money. They’re worried about corporate money coming in,— the source continued. “And in Bob’s bad luck, he ended up with two activist judges who wanted to rewrite the law. He got much more than he asked for, but he’s stuck with it.—

Hasen agreed that although Bauer and the group weren’t necessarily asking for the court’s outcome, they’re stuck with the fallout.

“Bob got himself in a somewhat difficult position because he has to represent the interests of his client. And the court’s broad ruling is going to get EMILY’s List what it wants, but such a broad deregulatory opinion doesn’t necessarily line up with the interests of the DNC and the Obama administration,— he said.

Another campaign finance veteran, Jan Baran, a Republican, said he feels Bauer’s pain. Baran, a partner at the law firm Wiley Rein, said all attorneys must contend with a vast spectrum of clients, but “in politics you can be held up to some different standards.—

“There are a lot of cross currents when you are an attorney and you’re trying to argue the best case you can,— Baran said. “If he were just representing ordinary criminal defendants, he wouldn’t be attacked as much. … It’s the price you pay for representing politicians.—