Strategic Planning

Over his 40 years of law practice, James Bopp, Jr. has been a leading legal strategist for his clients, developing legal strategies to overturn important Supreme Court precedents, to enforce and enhance favorable Supreme Court decisions, or to achieve a favorable Supreme Court decision regarding new legal issues. As a result, he was recognized by the National Law Journal, the legal profession's leading legal publication, as one of the 100 Most Influential Lawyers in America.

In its profile of him, the NLJ said that Bopp is a “litigation machine, methodically mowing down restrictions on campaign financing and speech.” The NLJ considered Bopp's strengths to be his ability to achieve legal results for his clients and his thought leadership on “cutting-edge . . . legal issues.”

One component of a successful legal strategy is to employ litigation based on “test case” principles, first developed by the NAACP in its effort to overturn Plessy v. Ferguson (1896), which succeeded in Brown v. Board of Education (1954). Test case litigation has several key elements: (1) an incremental approach to undermining precedent, (2) employing strategic considerations in bringing particular cases, including selection of legal theories, factual development and bringing the cases in favorable courts, (3) development and employment of professional experts for use in the litigation, (4) use of expert attorneys to conduct the litigation, and (5) aggressive use of litigation. The Bopp Law Firm has employed all of the principles of test case litigation in developing and conducting its legal strategies

Bopp is most well known for his development and implementation of a legal strategy to strike down federal campaign finance restrictions in the McCain-Feingold law by reversing McConnell v FEC (2003). The legal strategy had its most significant success in Citizens United v. FEC (2010). In 2002, Congress passed the McCain-Feingold campaign finance law which imposed severe restrictions on political parties and advocacy groups. Key provisions of the law were upheld in McConnell, including the prohibition on independent political speech by corporations and labor unions advocating the election of federal candidates. As a result of that decision, Bopp developed and implemented a legal strategy to overturn this decision.

McConnell  upheld the ban on corporate political speech “on its face.”  Bopp's legal strategy, therefore, focused on instances where the ban on corporate political speech could not be justified “as applied” to certain communications. In Wisconsin Right to Life v. FEC (2007), brought in 2004, Bopp argued (1) that “as applied” challenges to the ban on corporate political speech could be brought against the law, even though McConnell had upheld the law “on its face,” and (2) that the prohibition on corporate political speech could not constitutionally be applied to grass roots lobbying about an upcoming vote in Congress. In two trips to the Supreme Court, the Court ruled for Bopp on both points: unanimously that “as applied” challenges could be brought and five to four that the prohibition on corporate political speech had to be cut back to only speech that contained an appeal to vote for or against a candidate, thus permitting corporate grass roots lobbying.

In 2007, Bopp brought Citizens United v. FEC (2010) as the next step in taking down the corporate political speech prohibition. Here, Citizens United argued that the movie Hillary the Movie could not be banned, but, if it were, the corporate prohibition was unconstitutional and McConnell should be overruled. In another five to four decision, the Court held the corporate prohibition on political speech unconstitutional and overruled McConnell.

In addition, Bopp has developed and implemented legal strategies in several other areas of the law. As general counsel for the National Right to Life Committee, Bopp also developed three legal strategies, one to overturn Roe v. Wade (1973), which barely lost in a five to four vote in the Supreme Court in Planned Parenthood v. Casey (1992), to uphold a ban on partial birth abortions, struck down by the Court in Stenberg v. Carhart (2000), which was successful in Gonzales v. Carhart (2007), and to prevent the Court from finding a constitutional right to assisted suicide, which succeeded in a unanimous decision in the Supreme Court in Washington v. Glucksberg (1996).

Also, in the area of campaign finance, among other legal strategies, Bopp developed a legal strategy to undermine Supreme Court precedents upholding campaign contribution limits in Buckley v. Valeo (1976) and Shrink Missouri PAC v. Nixon (2000).  In Randall v. Sorrell (2006)  the Supreme Court for the first time struck down contribution limits finding Vermont's contribution limits to be too low. In April 2014, U. S. Supreme Court handed down its decision in the case of McCutcheon v. FEC,  another of Bopp's cases, which declared unconstitutional aggregate limits on all contributions to federal candidates, PACs and political parties that an individual can make over the two year election cycle. This decision declared that only the state's interest in preventing quid pro quo corruption could be a basis for upholding contribution limits which could form the basis for the Court to strike down all soft money and contribution limits.

Regarding judicial candidate speech, Bopp developed a legal strategy to have the Court fully protect judicial candidate speech, which succeeded in Republican Party of Minnesota v. White (2002),  and implemented a strategy to successfully enforce this ruling, which is still ongoing.

All the key elements of these legal strategies are applicable to the development of a legal strategy to deal with other legal challenges. And the success that The Bopp Law Firm has had in developing and implementing these legal strategies over the last 40 years provides assurance that the legal strategy developed and implemented to deal with other legal challenges will have the optimal chances for success.

[1] The National Law Journal, The 100 Most Influential Lawyers in America, 2013, http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1202593197565.

[2] Plessy v. Ferguson, 163 U.S. 537 (1896); Brown v. Bd. of Ed. of Topeka, Shawnee Cnty., Kan., 347 U.S. 483 (1954), supp. sub nom., Brown v. Bd. of Educ. of Topeka, Kan., 349 U.S. 294 (1955).

[3] McConnell v. FEC, 540 U.S. 93 (2003); Citizens United v. FEC, 558 U.S. 310 (2010). Bopp was counsel for McConnell and 28 other Plaintiffs in McConnell and brought the Citizens United case on behalf of the successful Plaintiff.

[4] A statute is unconstitutional “on its face” when “. . . it always operates unconstitutionally.” Challenge, Black's Law Dictionary (9th ed. 2009).

[5] An “as-applied challenge” is “[a] claim that a law or governmental policy, though constitutional on its face, is unconstitutional as applied, usu. because of a discriminatory effect; a claim that a statute is unconstitutional on the facts of a particular case or in its application to a particular party.” Challenge, Black's Law Dictionary (9th ed. 2009).

[6] Wisconsin Right to Life, Inc. v. FEC, 546 U.S. 410 (2006) (permitting as-applied challenges); FEC v. Wisconsin Right To Life, Inc., 551 U.S. 449 (2007) (curtailing prohibition on corporate political speech). Bopp was lead counsel for the successful Plaintiff.

[7] Citizens United v. FEC, 558 U.S. 310 (2010).

[8] Roe v. Wade, 410 U.S. 113 (1973); Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992); Stenberg v. Carhart, 530 U.S. 914 (2000); Gonzales v. Carhart, 550 U.S. 124 (2007); Washington v. Glucksberg, 521 U.S. 702 (1997).

[9] Buckley v. Valeo, 424 U.S. 1 (1976); Nixon v. Shrink Missouri Gov't PAC, 528 U.S. 377 (2000).

[10] Randall v. Sorrell, 548 U.S. 230 (2006). Bopp was lead counsel for the successful Plaintiffs.

[11] Peter Overby, The ‘Country Lawyer' Shaping Campaign Finance Law, NPR, Jun. 22, 2011, http://www.npr.org/2011/06/22/137318888/the‑country‑lawyer‑shaping‑campaign-finance-law.

[12] U.S. (2014). Bopp was lead counsel for the successful co-Plaintiff Republican National Committee.

[13] Republican Party of Minnesota v. White, 536 U.S. 765 (2002). Bopp was lead counsel for the successful Plaintiffs.

[14] Terry Carter, The Big Bopper, ABA Journal, Nov. 24, 2006, http://www.abajournal.com/magazine/article/the_big_bopper/.