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Amanda Bronstad
The National Law Journal
03-22-2007

Lawyers and law firms are jumping into the 2008 presidential election as counsel, advisers and fund-raisers for both candidates and donors in a race that is expected to be expensive and inundated with regulatory compliance issues.

In the past few months, presidential candidates have retained lawyers as general counsel to their campaigns. Other lawyers have signed up as campaign advisers, fundraisers or volunteers.

Meanwhile, some new firms, such as Bryan Cave; Womble Carlyle Sandridge & Rice; and Vorys, Sater, Seymour and Pease are starting election law practices with recent hires from the Federal Election Commission.

Fueling much of the legal work are increased FEC fines, more regulations following the 2002 Bipartisan Campaign Reform Act (the McCain-Feingold bill) and an expected record number of dollars that will be spent on the 2008 election.

"You'll have more work than a relatively small number of practitioners can handle," said Robert Bauer, a partner at Seattle-based Perkins Coie who is general counsel to the presidential campaign of Sen. Barack Obama, D-Ill. "The bar is definitely going to expand."

General counsel oversee the day-to-day legal issues involved in presidential campaigns. Some of the law firms represent more than one campaign.

Bauer, who represents Obama, said another partner at his firm, Marc Elias, is general counsel to the campaign for Sen. Christopher Dodd, D-Conn. He said the firm has erected a "wall" between the lawyers on both sides, noting that the arrangement isn't uncommon.

Washington-based Ryan, Phillips, Utrecht & MacKinnon, for example, represents the campaigns of both former Sen. John Edwards, D-N.C., and Sen. Hillary Rodham Clinton, D-N.Y.

General counsel handle ordinary legal issues involving employment, contracts, insurance, real estate leases and aircraft charters, said Trevor Potter, a partner at Washington's Caplin & Drysdale who is general counsel to the campaign of Sen. John McCain, R-Ariz.

But general counsel face some new issues in the 2008 election, such as calendar changes in state delegations and a record amount of fund raising, said Bobby Burchfield, a partner and co-head of the Washington office of McDermott, Will & Emery and outside counsel to the campaign of former New York City Mayor Rudy Giuliani.

The FEC's increased scrutiny of independent groups, such as tax-exempt "527" nonprofit organizations, could pose unique legal challenges, as "the Federal Election Commission has taken a somewhat more aggressive stance toward independent 527 organizations than it had before," Burchfield said.

Donald McTigue of Columbus, Ohio-based McTigue Law Group, who is the general counsel to the campaign of Rep. Dennis Kucinich, D-Ohio, said much of his work will be spent making sure that contributor information is aggregated and accounted for correctly, particularly as more donors contribute over the Internet.

Besides general counsel, lawyers are getting involved as advisers, volunteers and fund-raisers for presidential campaigns.

Ted Olson, an appellate partner in the Washington office of Los Angeles-based Gibson, Dunn & Crutcher and former solicitor general of the United States, is putting together a list of participants for a justice advisory committee within the Giuliani campaign.

The committee would provide "advice and counseling with respect to issues that have to do with law, judges, constitutional questions and things of that nature," said Olson, who is chairman of the committee.

He said the committee's formation predates recent issues surrounding Giuliani's promise to appoint conservative judges to the federal bench if he gets elected.

James Bopp Jr., a partner at Bopp, Coleson & Bostrom in Terre Haute, Ind., whose clients include the National Right to Life Committee, is adviser on life issues for the campaign of former Massachusetts Gov. Mitt Romney. Bopp said he is advising Romney on "social conservative issues.

"What I'm doing on my campaign is not based on the fact that I'm a lawyer but my expertise with social-conservative issues and my experience in politics," Bopp said.

Other lawyers volunteer their services.

Bauer of Obama's campaign said his team is organizing a group of volunteer lawyers in the coming months that could assist in day-to-day legal responsibilities.

"We have an increasing number of lawyers who want to volunteer to help our effort," he said.

Bauer said some lawyers also help raise funds for Obama, such as Jeh Johnson, a partner at New York-based Paul, Weiss, Rifkind, Wharton & Garrison. Another Obama fund-raiser, John Roos, chief executive of Palo Alto, Calif.-based Wilson Sonsini Goodrich & Rosati, who was a key California fund-raiser for Sen. John Kerry, D-Mass., in 2004, said he anticipates harnessing the Internet for donations.

"I'm in the middle of the Silicon Valley, where all the candidates come seeking not only guidance with respect to policy issues but also financing for their campaigns," Roos said. "Anything I can do to help Barack Obama raise money from the Silicon Valley and beyond, I'm willing to do because he's an exciting candidate."

At the McCain campaign, Stan Anderson, of counsel to McDermott, Will & Emery, is head of a "Lawyers for McCain" committee that is reaching out to lawyers for fund-raising dollars and other legal support.

"I was asked if I would help organize the legal community in support of Sen. McCain," he said. "It seemed to me the most efficient way to get the largest number of lawyers was through law firms."

To do this, Anderson is looking for a McCain supporter at each of the 250 largest law firms to serve as a "team campaign" who would help connect lawyers to the campaign.

BEEFING UP

Some law firms that are new to the practice are getting involved for the first time in representing the donors to candidates.

This month, Bryan Cave hired Michael Toner, who was chairman of the FEC in 2006. While the firm has had a lobbying group, Toner's arrival is expected to help establish a new election finance practice, said Rodney Page, administrative partner at Bryan Cave. He said he expects to have five people eventually in the new practice.

"We see political activity as something that is an expanding area of interest, with more legal work going on in connection with that," Page said.

He said election law has become complex with more regulations and FEC enforcement actions.

In January, Womble Carlyle Sandridge & Rice, a firm with offices in the Southeast, hired Lawrence H. Norton, the FEC's outgoing general counsel, and his deputy, Jim Kahl.

Norton, of counsel to the firm's Washington, D.C., office, said he did not want to join a firm with a long-established election law practice.

"We very much wanted to build our own practice," he said. "We were interested in firms that were establishing a footprint in this area."

He added that Womble Carlyle has a significant telecommunications practice that complements election law issues surrounding mailers, radio and television.

The firm represents corporations, many of which need more lawyers during the elections to keep tabs on their political action committees and 527s. "For public companies, the implications could be a few dollars off the stock price because of some scandal that might come out, or a story reported, about where the money is going," Norton said. "Shareholders don't like that kind of activity."

Kahl noted that he and Norton also represent numerous clients facing FEC enforcement actions.

Dickstein Shapiro of Washington, D.C., hired former FEC Chairman Scott Thomas to head its political law practice last year. Thomas said the firm's practice could grow eventually to 15 or 20 people.

Another FEC official, Bradley Smith, joined Columbus, Ohio-based Vorys, Sater, Seymour and Pease in late 2005 after serving as chairman of the FEC.

Smith said he is not involved in lobbying, although the firm has a lobbying practice. But he represents many political action committees and 527s. "Corporations and business communities are all trying to figure out how to stay relevant and make sure not to get in the FEC's crosshairs," Smith said.