In this issue of The Practice, we explore “campaign lawyering,” broadly conceived. What is a campaign? “A connected series of operations designed to bring about a particular result,” according to Merriam-Webster. A movement or drive toward some goal, perhaps. What does it mean, therefore, to engage in campaign lawyering? Here, we look at the role of lawyers in campaigns from multiple perspectives—from campaigning against election finance regulation to working for a presidential campaign to being a general counsel at a mission-driven organization campaigning for change. While we probe what it means to be a campaign lawyer, we are agnostic as to the nature of the campaign itself. We are also not primarily focused on “election” lawyers or election law—though both subject areas do come into play. To learn more about election lawyers and law specifically, you can read The Practice from January 2022, including a lead article about the Election Law Clinic at Harvard Law School. In this issue, however, we are focused on how lawyers engaged in campaigns understand and prepare for their roles—and the challenges they face along the way.
Our lead story explores the lawyers engaged in the campaign to deregulate campaign finance, as well as their tactics, and how they modeled their methods in part after the NAACP’s strategy to attack racial discrimination. Adapting her book, Big Money Unleashed: The Campaign to Deregulate Election Spending (University of Chicago Press, 2023), Ann Southworth, professor of law at the University of California-Irvine School of Law and codirector of their Center for Empirical Research on the Legal Profession, asks: “The U.S. Constitution does not mention campaign finance. How, then, did we arrive at an understanding of the First Amendment that makes most campaign finance regulation vulnerable to constitutional challenge?” Her answer? “The central claim of my new book … is that nonjudicial actors—lawyers, advocacy organizations, patrons, and their networks—played important roles in the creation of this constitutional law.” Drawing from interviews with lawyers across the litigation campaign—those opposed to campaign finance regulation as well as those for—the article goes on to explain the change in law over time as well as the implications for the world we live in today. “The story told in Big Money Unleashed demonstrates—if any such evidence were necessary—that the development of constitutional law does not stand apart from politics,” Southworth writes.
We also look at lawyers directly engaged in political campaigns. We profile a recent Harvard Law School class: Presidential Campaign Lawyering. Taught by Dana Remus, President Joe Biden’s 2020 campaign general counsel and a current partner at Covington & Burling, and Kareem Carryl, a Covington associate in the election law practice group, the class exposed students to a dynamic career option they may have not considered. “Campaigns go from zero to multimillion- or billion-dollar corporations back down to zero within the span of a couple years,” Remus says. This means learning to lawyer for a campaign—and a presidential one at that—involves all types of lawyering. “Campaign lawyering helped my comfort, confidence, and judgment in both of these things—moving quickly when possible and slowing things down when necessary,” Remus says.
In another story, we speak to the general counsel of three mission-driven organizations: the Environmental Defense Fund, the Human Rights Campaign and the HRC Foundation, and the Robert Wood Johnson Foundation. In this, we ask each in-house lawyer about how they’ve built their career around campaigning for what they think is right—even when the work is not glamorous (employment or tax law) —while in greater service to the mission. As Ricardo Castro, vice president, general counsel, and board secretary at the Robert Wood Johnson Foundation, says: “I feel that everything I do, even if I’m not working on the program side directly, that I’m enabling that work.” This is something he tells his team, too, when they’re contending with their own challenges. “It’s important to remind them that the reason we’re dealing with these issues that may not be very glamorous is because we need to in order to ensure that the work can go on and that it can go on in a way that is compliant, that will keep us on the right side of things,” he says.
We conclude the issue with a Speaker’s Corner featuring Sherrilyn Ifill, president and director-counsel emeritus of the NAACP Legal Defense Fund, who challenges us to think deeply about whether all lawyering is really campaign lawyering—and the constraints therein. All lawyers have a duty to uphold the ethical norms of the profession, she says. While Ifill’s career as a civil rights lawyer and academic might typify what it means to engage in campaign lawyering, she is more concerned with those who see their allegiances to campaigns above all else. She says:
I regard the legal profession itself as a critical pillar of a healthy democracy. It is a profession committed to the rule of law, composed of people who are trained in law and who have taken an oath to uphold the core documents of our democracy. We regard ourselves—and should be regarded—as officers of the court, meaning that we have an obligation to the system regardless of the obligation to our clients. We are bound by an ethical code of conduct. It does not matter what kind of lawyer you are.
