Inside the Presidential Campaign
Rival General Counsels Reminisce
For two very long, frenzied, and sleepless years, Trevor Potter ’82 and Bob Bauer ’76 ran opposing legal shops — Potter as general counsel for the McCain campaign, Bauer as general counsel for Obama’s — in one of the most momentous presidential elections in American history. From their demeanors alone, it is easy to see who won the election. Potter is relaxed, quick to laugh, and clearly unburdened now that the Herculean grind of the campaign has ended. Bauer is affable but reserved; now serving as President Barack Obama’s personal attorney, he can expect even more work from the world’s most famous client.
Potter leads Caplin & Drysdale’s political activity law practice. He is a former commissioner (1991–95) and chairman (1994) of the Federal Election Commission, a non-resident fellow at the Brookings Institution, and the author of several books and articles about election law. He is also the founding president and general counsel of the Campaign Legal Center, the Washington-based nonprofit that helped successfully defend the McCain-Feingold law all the way to the United States Supreme Court. He has also taught seminars on election law at the Law School.
Bauer chairs the political law group of Perkins Coie. In his 30 years of practice, he has provided counseling and representation on matters involving regulation of political activity before the courts and administrative agencies of national party committees, candidates, political committees, individuals, federal officeholders, corporations, trade associations, and tax-exempt groups. He is also author of numerous books and articles, as well as an influential blog on political affairs, www.moresoftmoneyhardlaw.com.
Both are veterans of the political wars and at the top of their games. At a recent meeting in Potter’s offices in Washington, they shared their campaign experiences.
“Campaigns flow less predictably than other organizations,” says Bauer. “In less than two years, we set up an organization, raised over $750 million, spent it, and ran an election. That’s a short period of time. In a compact and intense period like that, there are going to be challenges that you don’t anticipate.”
But the McCain campaign did anticipate one specific challenge. McCain built a career on campaign finance reform, and Potter was a former chair of the FEC. “We knew we were walking around with a target on our back,” he says. “Any mistake we made, however innocent or minor in the area of campaign finance was likely to be seized on as an example of hypocrisy. And I think Bob did his best to make sure we got the scrutiny, and then some.”
In fact, the issue did come up during the Republican primaries. The McCain campaign took out a $3 million bank loan to be paid off after the primary nomination. Critics such as Bauer charged that McCain had used as collateral his entitlement to payments from the primary federal funding system, a result that would have severely restricted McCain’s spending in the six months after he won the Republican nomination and before he received public general election funds in September. It was an unorthodox loan that raised questions. “After endless sleepless nights and working on Sunday mornings under the pressure of the moment, I wondered if I had made a mistake,” recalls Potter. “Had I done something that was going to turn around and bite me? The candidate’s counting on me. He’s gone on national television and said ‘I’m sure it’s fine, we have a former chairman of the FEC overseeing this,’ and you think, ‘I better be right.’ Was I ever relieved when the FEC unanimously agreed with me and said what we’d done was okay.”
Facing a voracious, 24/7 media appetite for news strained nerves in both camps. Teams of reporters picked through every campaign finance filing. The mainstream press and the blogosphere demanded answers on a daily basis, eager to go national with their stories in just hours. “Trevor and I both wound up having to spend a lot of time with the press,” says Bauer. “There are issues that only the counsel can really explain to the press and very often on background,” says Bauer.
“Often, I would not be aware of an issue until we would file a voluminous FEC report,” recalls Potter. “And then, within about five hours, I would start getting calls from our press office saying that so and so of Roll Call or the Washington Post wants to know what this item is on schedule Z on page 27, and they need the answer by 4:30.”
Adding to the frenzy, each side invested heavily in opposition research. They read every filing, scoured every newspaper, and looked at every quote. It often wasn’t clear if “gotcha” issues were more campaign-generated and picked up by the press, or the other way around.
Meanwhile, each campaign tried to convince reporters and bloggers that they had the wrong facts. But if the media ran with a story, it was already too late for damage control. “You could soften the impact of a bad story with a careful reporter,” says Bauer. “There were some who cared a great deal about their professional reputation and they would work with you, but they were under tremendous pressure to write stories and not be outdone by the competition. It’s a natural tension between a campaign and the media.”
“It is great training for a lawyer in private practice,” adds Potter. “If you think clients need quick answers, it’s nothing compared to working on a campaign. We would answer and try to explain to them they didn’t have a story. But they were going with it anyway and you would see it on the screen within six hours. Compared to previous campaigns, I found the media glare of this one startling. I would say that some days I easily spent more than 50% of my time dealing with a press inquiry solely for the purpose of proving that what they thought had happened hadn’t.”
For example, Potter recalled when McCain went to the Middle East on a fact-finding trip and was inaccessible. The Drudge Report, an online news aggregator that pushes certain stories, posted a photo of McCain with a large purple spot on his forehead that looked like a recurrence of his skin cancer. Potter called McCain’s personal doctor in Arizona and got him out of bed to look at the photo. The doctor, diagnosing from the Drudge website, said it looked as if the Senator had hit his head on something. “With the time change, we had to wait a couple of hours while the media was going crazy. It was on FOX before we could reach McCain, who said, ‘What? Yeah, I hit my head on the helicopter this morning. Why?’ There was no story, but there is too much competitive pressure for anyone to back off and wait for the answer from the campaign.”
Citing one example of how to kill a story, Potter praised Bauer for his response to an aspect of Obama’s purchase of his residence that had turned up in research. The McCain campaign had hoped to make it a corruption issue. “But buried in some papers was an affidavit from Bob’s office that had been done months before,” recalls Potter. “Clearly Bob had seen this coming and had in the can the affidavit from the seller explaining that they had done this as an arm’s length transaction and there was no intent to benefit Senator Obama. And I thought, ‘Now there is a good piece of lawyering.’”
Bipartisanship? Not so much …
Clearly, Bauer and Potter have known and respected each other for years. They continue to do so, in spite of the rhetoric that flew during the campaign. At the outset of the general election campaign, both campaigns announced they were going to stick to the issues and avoid personal attacks. Potter says both the McCain campaign and the Obama campaign early on spoke about changing the tone in the fall election. The McCain campaign suggested this extend to cooperative legal efforts on election procedures. However, as the general campaign progressed, it quickly went negative. What happened?
“It’s a highly competitive period,” says Bauer. “The campaigns have a clash of interests which makes it awfully hard to look past your own interests. You have to structure the debates, how many of them to have, how to raise your money, what voter registration programs you have. It’s highly unlikely that the party that receives a proposal from the other is going to imagine that it was fashioned without any attention to competitive advantage.”
Potter agrees. “I think it’s fair to say that perhaps we were naïve in thinking that in the structure of a general election you could actually have a bipartisan approach to issues like voter registration or Election Day disputes. From our side and I think from Bob’s, we thought there were impediments to that, not the least of which is a lot of history. Both sides suspect the motives of the other and assume that whatever they’re proposing must have some nefarious purpose. But, at some stage,” he concludes, “you just have to get on with life and stop worrying about that.”
Perhaps their longest and loudest disagreement involved public financing. Both men understood there was an advantage for Obama to go outside of the system, and for McCain to try to keep him inside it. Their legal positions followed that logic, Bauer arguing that Obama’s fundraising program involved a revolutionary number of small donors participating over the Internet, which obviated the basic concerns the public financing system was meant to address. Potter claimed McCain was protecting the system by staying in it and that Obama should keep his pledge to participate in the system or take responsibility for damaging it. Ultimately, everything became a source of potential argument about tilting the playing field for or against a campaign. “That’s in the nature of this sort of competition,” says Bauer.
Then came the controversy stoked by the voter registration efforts of the Association of Community Organizations for Reform Now, or ACORN. According to Potter, the Republican base is convinced that Democrats try to steal elections. They remember the big city machines and the first Mayor Daley. But Democrats, he says, can also point to what appear to have been Republican efforts to prevent Democratic voters from voting based on racial or socioeconomic grounds. That dispute continues and ACORN walked right into it. Then McCain fed the fire, citing ACORN in one of the debates as a “fundamental threat to the fabric of our democracy.”
However, ACORN has been around for over a decade. Like the proverbial phoenix, it rises out of the ashes of an earlier election season and then flies off Republican radar until the next one. As a result, Potter was initially skeptical that ACORN was an issue at all. So, when McCain became the nominee apparent in the spring, Potter asked for all the evidence that supported the Republican claims.
“I saw this as an example of a place where partisan interests can take over on both sides,” he says. “ACORN is damned if they do and damned if they don’t, so I have some sympathy. They have a bad business model [paying by the number of signatures gathered]. Then you put on the partisan gloss that this is intentional and just the tip of the iceberg. It becomes an enormous partisan battleground with nothing but seething distrust on both sides. In the midst of that, ACORN was leading with its chin. That’s where the partisans took over.”
Bauer responded aggressively to Republican allegations about ACORN. He fired off a letter to Attorney General Michael Mukasey. He asked Mukasey to instruct the Justice Department’s inspector general to investigate whether Bush administration officials were coordinating with McCain’s campaign over voter registration fraud allegations. He asked Mukasey to “personally take steps” to make sure the department “is not misused for partisan purposes.”
“The Department of Justice under George W. Bush had gotten itself into a fairly difficult pickle and its credibility had been seriously sapped,” recalls Bauer. “For that reason, it was important for us to send a very clear message to the Attorney General that we expected him to conduct himself in a non-partisan fashion. If there was going to be an investigation of the voting process and of voting rights, it had to be a concern that took into account all sides of the question; their concern about fraud, our concern about manipulation to restrict access. That was an important part of our sending a message to the Department of Justice.”
Potter’s hands were tied. “We felt that we couldn’t respond or write a similar letter with our complaints. We would inevitably be seen as improperly coordinating with the department since the Attorney General worked for a Republican president and we were a Republican nominee.
“I will not say how I felt about Bob when I realized that he had just called for a special prosecutor to investigate me,” says Potter in feigned outrage. “I went into the campaign manager’s office and said ‘Good news, the Obama campaign has just asked for a special counsel to investigate you and me!’”
Bauer responded with a wry grin. “I’m sorry. Remind me of that again. Did I do that to you?”
Another dynamic drove campaign decision-making. Democrats remain angry about the “hanging chads” in Florida in 2000 and Ohio irregularities in 2004. They did not want to be “out-lawyered” again on Election Day. Bauer understood that pressure, but he also knew that it wouldn’t help to “tell voters that hundreds of thousands of lawyers are fanning out across the United States. The notion that there’s going to be pitched battles at the polls scares voters away.” Nevertheless, it was important for the Obama campaign to signal its voters that whatever happened in 2000 and in 2004 would not happen anywhere in 2008. “We had a reason to be clear about that.”
Potter had the opposite problem. The campaign needed to avoid appearing as if they were “lawyering up,” yet the press kept asking about how many lawyers the campaign was going to deploy. He directed that the campaign response should be that it “thought elections should be decided by voters and not lawyers.” Otherwise, his rule was “Don’t say a word. Obviously, we had preparations. Obviously, we had lawyers, but it didn’t benefit us to be out there talking about as it did Bob’s side.”
So, just how well did they get along during the campaign?
“We emailed a couple of times,” says Bauer. “We were doing press conference calls a couple of times.”
“I remember you jumped in on one,” Potter says with a grin.
“I jumped in once. I listened in on one of his calls. I did not crash it because he’s a former colleague of mine at UVA. We’d never do such a thing ….”
On the way down the elevator, Potter marveled that Bauer was still going at the same campaign pace without rest, but Bauer shook his head. “No, I’m fine,” he said, “but they’re working on fumes over at the White House.”