Supreme Court Practice

Bopp recognized as one of America’s Most Influential and Elite Supreme Court Advocates

Since Jim filed his first brief in the United States Supreme Court in 1977, he has developed an extensive practice in the United States Supreme Court and in various State Supreme Courts. As a result, he has been recognized as one of the Top Supreme Court Advocates of the Twenty-First Century by the Journal of Law and as a member of “an elite private sector group of attorneys who are dominating advocacy before the Court to an extent not witnessed since the early nineteenth century” by the Georgetown Law Journal. In part because of his Supreme Court practice, Jim was recognized in 2013 as one of the “100 Most Influential Lawyers in the United States” by the National Law Journal and as the 2009 Republican Lawyer of the Year.

Jim had 13 of his cases decided on the merits in the U.S. Supreme Court, winning 9 of them. In addition, he has filed 53 amicus briefs and briefed 33 additional appeals in cases in the Supreme Court. In State Supreme Courts, he has had 17 cases decided on the merits, winning 10 of them, and has also filed 27 amicus briefs. Jim has practiced in State Supreme Courts in Alaska, Arizona, California, Connecticut, Florida, Georgia, Illinois, Indiana, Iowa, Kansas, Kentucky, Maine, Michigan, Minnesota, Missouri, Nebraska, New Mexico, New York, Pennsylvania, Rhode Island, Virginia and Wisconsin.

United States Supreme Court cases decided on the merits where Bopp was counsel:

McCutcheon and Republican National Committee v. Federal Election Commission, No. 12-536 (2014), involved a challenge to the two year election cycle limit on total contributions an individual may make to all federal candidates, PACs, state and national political parties. The Court struck down these aggregate limits, under the First Amendment, finding that the limits do not serve the government’s interest in preventing quid-pro-quo corruption, which is the only interest that may be utilized to limit political speech. This case suggests that the Court is willing to impose increased scrutiny on contribution limits and on soft money restrictions on political parties.

American Tradition Partnership v. Bullock, 567 U.S. ___ (2012), involved a Montana law that prohibited corporations from paying for independent expenditures advocating the election or defeat of state candidates. The Montana Supreme Court upheld this prohibition even though the U.S. Supreme Court had already struck down a similar federal law in Citizens United v. FEC, arguing that Citizens United did not apply to state laws and that Montana’s history was different. The Court summarily struck down the Montana law finding that Montana’s arguments were already disposed of in Citizen United.

Doe v. Reed, 130 S. Ct. 2811 (2010), involved a claim by signers of a referendum petition supporting traditional marriage that their signatures should remain confidential because they had a right of anonymous speech. The District Court had issued a preliminary injunction preventing release of the petition signatures but the Court reversed, finding no right to anonymous speech in this circumstance, but holding that the signatures could remain confidential if the signors could demonstrate that there was a particular risk of harassment of them by homosexual rights advocates.

The Real Truth About Obama v. Federal Election Commission, 130 S. Ct. 2371 (2010), involved a challenge to the Federal Election Commission’s rules on determining political action committee status and on determining the content of independent expenditure communications. These rules were challenged under the First Amendment because they were vague and because they regulated issue advocacy and issue advocacy groups. The 4th Circuit Court of Appeals upheld these expansive definitions, but the Court summarily reversed, ordering the lower courts to reconsider their rulings in light of the decision in Citizens United.

Citizens United v. Federal Election Commission, 130 S. Ct. 876 (2010), involved whether federal law could constitutionally prohibit the broadcasting of Hillary the Movie while Hillary Clinton was running for President in 2008. Federal law prohibited corporations from broadcasting ads, called “electioneering communications,” that mentioned the names of federal candidates before primary and general elections. The Court struck down this law, reversing McConnell v. FEC, and held that corporations could not be prohibited under the First Amendment from advocating for the election or defeat of candidates, overturning Austin v. Michigan Chamber of Commerce, which had held that they could be so prohibited.

The Christian Civic League of Maine v. Federal Election Commission, 551 U.S. 1160 (2007) (2007), involved a grass roots lobbying campaign by the Christian Civic League urging its Senators to vote for the federal marriage amendment. The broadcast ads sought to be run were prohibited “electioneering communications” under McCain-Feingold, because they mentioned federal candidates in close proximity to an election and were paid for by a corporation. The District Court upheld the prohibition against a First Amendment challenge, but the Court summarily reversed and ordered the lower court to reconsider its ruling in light of the Court’s decision in Wisconsin Right to Life. The District Court, on remand, permitted the broadcast ad to run because it did not contain an appeal to vote as required by Wisconsin Right to Life.

Federal Election Commission v. Wisconsin Right to Life, 127 S. Ct. 2652 (2007), involved a grass roots lobbying campaign by Wisconsin Right to Life, which wanted to a run broadcast ad urging their Senators not to filibuster President Bush’s judicial nominees. These broadcast ads were prohibited “electioneering communications,” because they mentioned a federal candidate before an election and were funded by a corporation. The Court held that the electioneering communication prohibition had to be limited to only broadcast ads that appealed to the listener to vote for or against the candidate mentioned in the ad. The Court held that Wisconsin Right to Life’s ads did not have an appeal to vote and could be broadcast. This decision was the second time the Court reviewed this case, see below.

Randall v. Sorrell, 126 S. Ct. 2479 (2006), involved Vermont laws which limited the amount of expenditures a candidate could make in running for state office and severely limited contributions to them, for instance, limiting contributions to candidates for governor to $400 over the 2 year election cycle. The Court, in Buckley v. Valeo, 424 U.S. 1 (1976), had struck down candidate campaign expenditure limits and had upheld only limits imposed on large contributions. Vermont challenged both of these Buckley holdings, but the Court reaffirmed Buckley by striking Vermont’s expenditure limits on their face and by striking their contribution limits as too low.

Wisconsin Right to Life v. Federal Election Commission, 126 S. Ct. 1016 (2006), involved the first decision by the Court in this case, reversing the decision of the District Court that the case had to be dismissed because the Court in McConnell v. FEC had upheld the “electioneering communication” prohibition on its face. The Court held that an as applied challenge to a law could always be made, even if the Court had generally upheld the law. Wisconsin Right to Life argued that even if ads that mention federal candidate close to an election generally may be banned, grass roots lobbying ads could not be. The Court ordered the District Court to consider Wisconsin Right to Life’s challenge on the merits, which returned to the Court in 2007.

Leake v. North Carolina Right to Life, 541 U.S. 1007 (2004), involved a claim by North Carolina Right to Life that contributions limits could not be applied to independent expenditure-only PACs and that North Carolina’s definition of political action committee was vague and too broad. The 4th Circuit agreed that contribution limits could not be applied to what are now called SuperPACs, in the first decision of its kind, and the definition of a PAC under North Carolina law was too broad because in encompassed groups whose major purpose was not campaign-related. The Court summarily reversed, ordering the lower courts to reconsider its rulings in light of McConnell v. FEC. On remand, the 4th Circuit again held that PAC contribution limits could not be applied to SuperPACs and that North Carolina’s definition of a PAC was unconstitutionally broad. Leake v. North Carolina Right to Life, 524 F. 3d 427 (4th Cir. 2008)

McConnell v. Federal Election Commission, 540 U.S. 93 (2003), involved the constitutionality of numerous provisions of the McCain-Feingold campaign finance law. Bopp represented Senator McConnell and 28 additional Plaintiffs making numerous challenges under the First Amendment. Most were unsuccessful, most importantly, challenges to the corporate and labor union prohibition on “electioneering communication,” and to soft money restrictions on national, state and local political parties. Two challenges brought by Bopp were successful: the Court struck down the prohibition on minors contributing to federal candidates and struck down the prohibition on political parties from both contributing to and making independent expenditure on behalf of the same candidate during a general election. Subsequently, the McConnell Court’s upholding of the “electioneering communication” prohibition was overruled in Citizens United v. FEC.

Federal Election Commission v. Beaumont, 539 U.S. 146 (2003), involved an as applied challenge to the prohibition on corporations giving contributions to federal candidates. North Carolina Right to Life claimed that, since the Court had held in Massachuset Citizens for Life v. FEC, @ (1986), that certain non-profit corporations could not be prohibited from making independent expenditures, these same groups should constitutionally be able to make contributions to candidates. The Court rejected this as applied challenge.

Republican Party of Minnesota v. White, 536 U.S. 756 (2002), involved a challenge to Minnesota’s judicial canon of ethics prohibiting judges from announcing their views on disputed legal and political issues. In a case of first impression applying the First Amendment to limits on judicial campaign speech, the Court struck down this prohibition.