Bob Bauer, the chairman of the political law group at Perkins Coie, is the Democratic Party’s election lawyer par excellence.
His clients include the Democratic Senatorial Campaign Committee, the Democratic Congressional Campaign Committee and scores of individual Members of Congress.
During the run up to the 2004 Democratic presidential primaries, his firm represented fully half of the six leading contenders including Sen. John Kerry (D-Mass.), the eventual nominee.
He’s even represented two legislative bodies in two impeachment trials: He was outside counsel to then-Senate Minority Leader Tom Daschle in the impeachment trial of then-President Bill Clinton as well as outside counsel to the state Senate of New Hampshire in the impeachment trial of state Supreme Court Justice David Brock.
“He’s an institution. He knows this stuff as well if not better than anyone else. He can also tell you what will happen in the campaign which, in a lot of respects, is most important,” said Democratic media consultant Tom O’Donnell, the former chief of staff to then-House Democratic Leader Richard Gephardt (Mo.) who has seen Bauer handle everything from ethical controversies to compliance with campaign finance laws.
But what really makes Bauer stand out is a point of view on campaign finance regulation that — at least until lately — has been close to heresy in the Democratic Party.
Democrats had a long and emotional commitment to campaign finance reform. But Bauer is a passionate believer that politics is over-regulated and that people and organizations should not need lawyers as much as they currently do when participating in the political process.
In light of the Supreme Court’s 2003 McConnell v. Federal Election Commission decision, which broadened the permissible purpose of campaign finance regulations from fighting quid pro quo corruption to fighting circumvention of already-existing campaign finance laws, Bauer’s pet cause might seem like a fool’s errand.
But John Samples, an analyst at the libertarian Cato Institute, doesn’t think so.
He thinks that Bauer, who advised Democratic Members of Congress to oppose McCain-Feingold, was vindicated
by the 2004 campaign in which the Democrats were kept afloat by large, unregulated contributions to 527 groups as the GOP ran up a big advantage under McCain-Feingold’s increased hard-money limits.
As a result, Samples thinks Bauer’s clout with Democratic Members of Congress relative to the good government reform community is greater than ever.
“There’s no question that they are listening to him completely,” Samples said. “When you put together that he was right” about McCain-Feingold “and that the people who have been so influential for so long led the party to near disaster means that you are going to see rising influence for Bauer with Members on these kinds of issues.”
Bauer’s increased clout leads Samples to believe that “we may well be at a turning point where the Democrats become not so willing to vote in large majorities for new regulations” like those contained in the Shays-Meehan 527 bill.
When the McCain-Feingold campaign finance law banned unlimited donations to parties, 527 groups became magnets for “soft money.” The Shays-Meehan bill would attempt to close this loophole.
Bauer worries, however, that Shays-Meehan will result in confusion, controversy, litigation and endless revision.
He also worries about a further erosion of the right of association.
“Think what one will of the motives and techniques of veterans and others whose 527 activity became notorious in the last cycle,” Bauer told the House Administration Committee in April, “it is not to be denied that from the Media Fund, to [Americans Coming Together], to Swift Boat Veterans, the activities and organizational efforts in question represented the ardent interests of politically committed Americans sharing a common goal.”
Reform advocates, quite naturally, take the opposite view. They think McCain-Feingold got politicians out of the business of personally soliciting massive contributions and that it spurred a rush of new small donations to the parties. They are not at all surprised that Bauer, who has represented outside groups as well as party entities, would be opposed to further regulation.
Early in his career as an election lawyer, Bauer had an open mind towards regulating political activity. And he said in an interview that he is still “quite open to public financing alternatives.”
But for the past several years, Bauer has challenged what he calls “mindless legal restrictions” on the political activities of individuals.
His clients are not the only way that he spreads his views. He is also a prolific writer.
In addition to having written three books on the subject of election law, Bauer spends between 15 and 20 hours per week writing for MoreSoftMoneyHardLaw.com, a Web site he developed as a compendium to a book by the same name which monitors and comments on developments in the regulation of the political process.
Rather than redressing the imbalance between the powerful and the less powerful, Bauer believes that new campaign finance regulations have “codified the imbalance.”
Bauer thinks that the largest corporations and the most powerful institutions will always have the resources to make themselves heard, no matter how onerous the regulatory scheme becomes. He worries, however, that progressive interests may inadvertently be hurt by the reform community.
“The possibility for progressive politics depends in large measure on bringing together large numbers of people who individually could not affect events,” Bauer said. “Who has the resources to operate under this law?”
Bauer believes that campaign finance regulations inevitably become “the play thing of whatever party happens to be the majority.”
“This was the case of the Democrats in the 1970s,” Bauer told the House Administration panel in April, “and it is true of Republicans today.”
Election law was a natural career choice for the son of a Foreign Service officer who has been “absorbed” by an interest in law and politics for as long as he can remember.
After volunteering for then-Vice President Hubert Humphrey’s presidential campaign in 1968 Bauer got his start in Congressional politics the following year. It was the summer between his junior and senior year at Exeter Academy when, after receiving a card with the names of Democratic Senators active with the DSCC from then-Secretary of the Senate Francis Valeo, Bauer took a handful of dimes into a phone booth in the Senate Russell Office Building and began cold calling their offices.
Those phone calls led to a summer job writing issue-by-issue talking points for the DSCC. He kept returning to the Hill for summer gigs throughout his years at Harvard, where he graduated magna cum laude in 1973. After finishing law school at the University of Virginia in 1976, he practiced commercial litigation and worked in the Carter White House on energy issues before commencing his election law practice.
The Senator most responsible for Bauer’s landing at Perkins Coie was actually a Republican. While working as an associate at Dechert, Price and Rhoads, Bauer filed an action designed to severely reduce how much Republicans could spend on Senate races. Bauer ultimately lost the case 9-0 before the Supreme Court. But since the action was at odds with the interests of now-Sen. Arlen Specter (R-Pa.), a one-time firm partner gearing up to run for the Senate, Bauer had to take a temporary leave from the firm. “He was not too keen on that,” Bauer said. The Democratic lawyer was welcomed back into the firm once the case was resolved. He decided, however, that Perkins Coie would be more amenable to building a political law practice targeted to Democrats.
Bauer is not the only politico in the family. He is married to Anita Dunn, the veteran Democratic media consultant who is advising Sen. Evan Bayh’s (D-Ind.) nascent presidential campaign.
Bauer’s knowledge of election law is so well respected that his client roster includes many Democrats who are strong champions of campaign finance reform.
While Dunn was serving as media consultant to former Sen. Bill Bradley (D-N.J.) during his 2000 presidential bid, Bauer served as his general counsel and mock debate sparring partner even though the former NBA star had made fighting the influence of big money a central plank in his campaign.
Did Bradley know where Bauer stood?
“He knew that I didn’t agree with him. But he didn’t much care,” Bauer said. “He thought it was impossible without reform to address major issues. I didn’t agree with him then and I don’t agree with him now.”