Every four years, a new mix of politicians assembles to compete for the opportunity to run for president. While the candidates’ names and faces change, the lawyers stay the same.
Attorney Michael Toner began his presidential-campaign legal career in 1996 working for Republican nominee Bob Dole. He worked for George W. Bush in 2000. In 2008, his first client was former Tennessee Senator Fred Thompson before signing with party nominee Arizona Senator John McCain.
Democrat Bob Bauer worked for former New Jersey Senator Bill Bradley’s presidential campaign in 2000, his law partner represented Massachusetts Senator John Kerry in 2004, and Bauer landed then-Senator Barack Obama of Illinois in 2008. Republican Ben Ginsberg cut his teeth in 1996 working for then-California Governor Pete Wilson’s White House run before joining Bush in 2000 and 2004. Four years later, he landed a new client, former Massachusetts Governor Mitt Romney, and he’s still representing him today.
At the presidential level, “you go to people who aren’t going to learn on the job,” said U.S. Court of Appeals Senior Judge Ralph K. Winter Jr., who taught election law at Yale University in Connecticut and is still an adjunct professor there.
Or, as Toner put it, you go to the “fraternity,” a tight-knit pool of campaign finance and election-law specialists who spend much of their time in between presidential contests either helping to write new laws or blowing up the ones already on the books. Either outcome is good for business.
The five law firms specializing in presidential campaigns have been paid $50 million since 1999 by candidates, political parties and political action committees, according to the Center for Responsive Politics, a Washington-based research group that tracks campaign spending.
As candidates forgo taxpayer campaign financing, which imposes spending limits, and dedicate unlimited sums to their races, the rate of payment is accelerating.
The five firms’ earnings from candidates, PACs, and party committees increased four times to more than $10 million through June 2012, up from $2.5 million for all of the 2000 campaign.
Obama and McCain spent $5.9 million between them on legal fees for the 2008 campaign, more than double the $2.5 million that Kerry and Bush spent four years earlier, Federal Election Commission records show. In the 2012 race, Bauer’s firm, Perkins Coie LLP, is the Obama campaign’s ninth biggest vendor, taking in $2 million through June 30, according to the center and Federal Election Commission reports.
With super-political action committees, organizations that can raise and spend unlimited amounts, now joining the mix, new clients are coming on board.
Bauer’s firm is working for the two super-PACs trying to elect congressional Democrats, Majority PAC and House Majority PAC, which combined paid the firm $254,564 through June 30, FEC records show. Two super-PACs trying to elect House Republicans, YG Action Fund and Congressional Leadership Fund, paid Toner’s firm, Wiley Rein LLP, $165,492.
“It was lawyers who conceived of the creation of super-PACs,” said Richard Hasen, a professor at the University of California School of Law in Irvine. And they created them “through the litigation.”
James Bopp, the attorney who filed the Citizens United v. the Federal Election Commission case that helped pave the way for super-PACs, said the laws have become so complicated that “it’s a high entry price” to run for office -- a development he said is troubling. “The Founding Fathers didn’t want people to have to hire high-priced Washington lawyers in order to engage in political activity,” he said.
The contacts with wealthy donors and other candidates while representing the next president -- or his defeated challenger -- turns the attorneys into rainmakers.
“Political activity and lobbying have just become another business,” said attorney Jan Witold Baran, a legal veteran of the 1988 George H.W. Bush presidential campaign, who last year convinced Toner to return to Wiley Rein.
Since 1998, Patton Boggs, where Ginsberg is a partner, has been paid $452.3 million by such lobbying clients as Northrop Grumman Corp., Microsoft Corp. and Bristol-Myers Squibb Co., more than any other firm, according to the center.
The political law practice at Bauer’s firm, Perkins Coie, now lists 28 lawyers, including Marc Elias, counsel to Kerry in 2004 and unsuccessful 2008 candidate Chris Dodd, according to its website. The firm has been paid $26.2 million since 2000 to provide legal advice for candidates and others involved in politics.
Since Toner became co-chairman with Baran of the election law and government ethics practice at Wiley Rein a year ago, the firm has earned $1.2 million for the 2012 races with Election Day still four months away. In 2000, it was paid $363,441.
“You can really get to know someone well,” Toner said. “If a year later, they or their company needs legal work, you might be a natural person for them to turn to. Also from a marketing perspective, it’s a highly visible endeavor.”
Although the attorneys work exclusively on their side of the partisan divide, their thin ranks create deeper bonds.
‘Everyone Knows Everyone’
“I know everybody in this small circle,” said Katie Biber, general counsel for Romney’s presidential campaign in both 2008 and 2012 who was mentored and ushered into the inner-circle by Ginsberg. “Everyone knows everyone. I’ve worked with or against almost everybody who works in this business.”
Baran and Bauer, who socialize outside of work with their families, were among the first practitioners in the field, meeting in 1981 when they argued a campaign finance case before the U.S. Supreme Court focused on the degree that the National Republican Senatorial Committee could help its candidates. Baran, arguing on behalf of the NRSC, won.
Republican election lawyers meet once a year for dinner in Washington. At Perkins Coie’s annual retreat, held this year in May at Washington’s Omni Shoreham Hotel, Bauer, who served as Obama’s White House attorney, and Ginsberg, a Romney legal adviser, parried over the 2012 elections in front of 300 lawyers and their spouses.
“Working on a presidential campaign is a unique and wonderful experience,” Ginsberg said. “The people who have done that certainly share a common bond and language and an appreciation for the unique set of issues that you face.”
There are also moments of mischief inside the club.
While representing Obama in the 2008 primary, Bauer was pitted against fellow Democratic legal heavyweight, Lyn Utrecht, who was counsel for Hillary Clinton and an alum of President Bill Clinton’s campaigns.
After Clinton supporters complained of being excluded from the Texas caucuses, Utrecht scheduled a media conference call to air those grievances. When Obama’s campaign learned of it, Bauer dialed in and began refuting Utrecht’s assertions as reporters took notes.
“I crashed that call,” Bauer said. “It was a brilliant idea that was put to me on the spur of the moment by the communications staff.” Utrecht didn’t return phone calls and e-mails seeking comment.
Besides helping campaigns comply with election laws and crashing media conference calls, these attorneys field dozens of legal queries of all forms.
Toner researched whether special insurance riders are needed for a skydiver (yes, according to Toner), while Biber did a similar study for a moon bounce for the children of supporters attending the Iowa straw poll (yes, too, Biber said).
Trevor Potter, who was counsel to John McCain’s 2008 presidential campaign and now advises comedian Stephen Colbert’s super-PAC, recalled his work for George H.W. Bush in 1988. Potter said he fielded a call from a Bush campaign staff member saying that the press plane, circling over Lake Michigan, had smoke in the cabin.
“What do we do?” Potter said he was asked. His response: “I think we land.”
The increased use of Web advertising is ratcheting up the speed in which the legal teams must review everything -- from the legal disclosures to the music played -- that a candidate airs publicly.
In prior cycles, campaign lawyers might review 60 national television ads during a campaign season. Now, they’re asked to approve as many as 30 Web ads in a week.
With expanding workloads and profits, the political bar also is growing.
“There’s now a real field called election law,” said Joel Gora, who teaches that subject at Brooklyn Law School in New York. “Certainly, 10 years ago there was nothing out there. Now it’s a burgeoning kind of field. There is more law, and when there is more law, there’s going to be more lawyers.”