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Ann Southworth on her new book, “Big Money Unleashed,” UCI Law’s Unique Legal Profession Course, and the Role of Lawyers in a Democratic Society

UCI Law Dean Austen Parrish interviews UCI Law Professor Ann Southworth, who teaches and writes on the legal profession (and was instrumental in designing UCI Law’s required first-year course on the American legal profession) about her new book, “Big Money Unleashed: The Campaign to Deregulate Election Spending,” on the roles that lawyers, advocacy organizations, and their patrons have played in the creation of U.S. Supreme Court doctrine invalidating campaign finance laws on First Amendment grounds. 

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Featuring:

• 

  Austen Parrish

  UCI Law Dean and Chancellor’s Professor of Law
  Expertise: Transnational Law and Litigation, Civil Procedure, Constitutional Law, Federal Courts

  Austen Parrish assumed the role of Dean and Chancellor's Professor of Law of the University of California, Irvine School of Law in August 2022, becoming its third dean. He previously served as the Dean and James H. Rudy Professor of Law at Indiana University Maurer School of Law. In 2018 and again in 2021, he was named a Wells Scholars Professor for his work with Indiana University’s prestigious Wells Scholars program. In 2019, he was bestowed with IU’s Bicentennial Medal and, in 2022, he was awarded the Provost’s Medal, the highest honor bestowed by the Office of the Provost, recognizing outstanding and transformative contributions to Indiana University Bloomington. He serves on the board of directors of AccessLex Institute and is an elected member of the American Law Institute. Prior to academia, Parrish practiced law at O'Melveny & Myers LLP in Los Angeles. He earned his law degree from Columbia University.

• 

  Ann Southworth

  UCI Law Professor
  Expertise: Legal profession, professional responsibility, public interest law, cause lawyers, the conservative legal movement

  Professor Southworth teaches and writes on the legal profession and lawyers who serve causes, with an emphasis on lawyers’ norms, professional identities, practices, organizations, and networks.  She participated in designing UC Irvine School of Law’s required first year course on the American legal profession, and is the co-author, with Catherine Fisk, of an interdisciplinary textbook, The Legal Profession, which is now in its 2nd edition.  She has published numerous articles on civil rights and poverty lawyers, lawyers involved in national policy-making, and advocates for conservative and libertarian causes, as well as a book on the conservative legal movement, Lawyers of the Right: Professionalizing the Conservative Coalition (University of Chicago Press 2008). Her new book, Big Money Unleashed: The Campaign to Deregulate Election Spending, explores the roles that lawyers, advocacy organizations, and their patrons have played in the creation of Supreme Court doctrine invalidating campaign finance laws on First Amendment grounds. It will be published by the University of Chicago Press in December 2023. 

Podcast Transcript

Intro 0:04
Welcome to UCI Law Talks from the University of California, Irvine School of Law. For all our latest news, follow UCI Law on Instagram, Facebook and LinkedIn.

Austen Parrish 0:21
Good morning. Thank you for joining us. My name is Austen Parrish and I'm the Dean and the Chancellor's Professor at the University of California, Irvine School of Law. This is UCI Law Talks, the podcast where you learn more about the amazing anteater community that is UCI Law, and also hear from leaders and lawyers of Southern California. Today professor Ann Southworth is joining us to talk about our fabulous new book, Big Money Unleashed: The Campaign to Deregulate Election Spending. It's been published by the University of Chicago Press as part of the claim Chicago series in law and society with books discussion of how the First Amendment became an obstacle to campaign finance regulation. Our conversation also fits in well with UCI somatic year on free speech, a series of events occurring all year across campus. And so nice to have you on the podcast. Welcome. Thank you so much Austin, LAN big money unleashed. It's a great title, what inspired you to write this book?

Ann Southworth 1:13
What counts is constitutionally protected speech is obviously incredibly important to the health of our democracy. And I'm so glad it's a theme for events this year. I've been interested in the First Amendment since law school, I took a course on the First Amendment from Gerald Gunther, who's an eminent constitutional law scholar and ad passionate advocate for free speech. And I've been interested at least since then, in the intersection between constitutional interpretation and America's political history. A more recent impetus for writing the book came out of my first book lawyers have the right and I found it really interesting how conservative interest groups lined up to oppose major legislation enacted in the early 2000s. And it wasn't obvious to me what direct interest they had in opposing the legislation. So that puzzle was another impetus for writing this book and doing the research

Austen Parrish 2:08
that makes sense, you know, you say something really important there. i It's amazing how many alums I talked to who had that little moment with a professor that sort of inspired them. And I know, certainly my own career, I can tie back to a couple of faculty I had in law school that sort of got me excited about a topic. And it sounds like that was very much your case. In your situation, too. Absolutely. Well, so look, I really enjoyed reading the book. And it's different from many books that are written by law professors, in the sense that it's not a policy book on how we should regulate money in American politics. And it's not a really a book about legal doctrine, right of how we should interpret the First Amendment in the laws that apply are the rules that apply. And I guess it's not really even that much about the substantive laws of campaign finance reform. But it's still it tells a great story. And it's a book about constitutional change. I think that's correct. So maybe you could say, what is the story? And what is your book about?

Ann Southworth 2:59
Yeah, you're absolutely right about what it's not about. It's not about the policy. It's not about how we should interpret the First Amendment. It's not about this really complex doctrine about regulating money in politics. Rather, it's about how we got here. And by here, I mean, the situation we now face where the courts have struck down a good deal of legislation designed to regulate big money in politics on the grounds that it's unconstitutional. And the First Amendment doesn't mention money and politics. The book explores the processes that generated major Supreme Court decisions and lower court decisions striking down campaign finance regulations. Yeah.

Austen Parrish 3:40
And it's a great read, because it really kind of goes beyond kind of that basic notion of law, and really tells a great story about what really happened, which I found fascinating, you know, the books organized in two parts. Can you talk a little bit about that? What's the first part? What's the second part? And why did you organize it that way? Yeah, the

Ann Southworth 3:55
first half of the book, the first four chapters are about the history of this campaign, key players, the key cases, the key patrons behind the litigation campaign, and the second half backs up and looks at major themes and implications of this campaign. So it looks at the alignments of the parties. It looks at the different worldviews of the lawyers and leaders on opposing sides of the cases. It considers issues of accountability for the justices and the lawyers involved in the campaign, and ongoing battles over the regulation of money and politics. You

Austen Parrish 4:31
know, a lot of my work is just based on reading materials, and you do a lot of archival work, and that's but but the heart of this book is also based on a number of interviews, I think that will be of interest to our listeners, who are those interviews from and how did you do those interviews? And what was all that about?

Ann Southworth 4:46
Yeah, I can't tell you who I interviewed, because I promised the interviewed lawyers that I wouldn't identify them. But I can say that I interviewed 52 lawyers who were involved in the major cases and they purchased Pay on both sides of these cases. And I interviewed many of the key players. And I think the interviews are really important facet of the book because these lawyers gave me a kind of behind the scenes perspective on the stakes of the cases, what they thought mattered about them. And their strategy and their efforts to build litigation coalition's. And just generally, the perspective on the long term process that unfolds.

Austen Parrish 5:26
You know, many of the people that listen to this podcast are law students, can you talk a little more about the way you did the interview? Is it something you all did in a week? Or did it last? How long did it take to do the interviews over what period of time? And how did the interviews go? You know,

Ann Southworth 5:39
I did all of these interviews in person, we now know that we can do interviews via zoom and do them quite well. But I did them all a person, and they're with lawyers located all over the country. I completed them all over the course of two years, a little less than two years. And that's basically it.

Austen Parrish 5:58
That makes sense. It sounds like it had just a wealth of information, add that sort of nuance and texture you're looking for.

Ann Southworth 6:03
Yeah, the difficulty is always deciding what to omit because there's so many gems of quotations and insights and have to call a great deal.

Austen Parrish 6:14
You've already touched on a little bit, but in addition to the interviews, what other research did you do? What what did you rely on, as you were crafting the book,

Ann Southworth 6:20
I gathered all the briefs and opinions in the major cases over 50 years and analyze them. I gathered data, biographical data, about the lawyers, data about the financial sources of funding sources for the interest groups involved in the litigation, and also archival work archival sources on the groups and the patrons and the Odyssey of this campaign.

Austen Parrish 6:46
As you look back and reflect on those interviews, and that archival research and the other documents you consulted was, was there anything that surprised you most or something that you learned from it that you weren't expecting to learn when you started this project several years ago? Yes.

Ann Southworth 6:59
One surprise was that the constitutional theory, the doctrine that is so well entrenched now, was really those theories were really quite novel at the time they were introduced in the 1970s. And the other surprise, I guess, maybe a sad surprise was just how much more polemical and polarized the rhetoric and the discourse and the opinions in the briefs has become over the last 50 years, and especially over the last 15 or so years,

Austen Parrish 7:31
I guess, we're seeing that in so many different aspects of our politics and the judiciary, and the legal profession certainly is inoculated from that, you know, maybe I can start sort of more broadly, as we're getting into the book, who do you hope will read the book? And what do you hope they will get from it sort of in the broadest, broadest sense,

Ann Southworth 7:49
I hope that the book will reach a broad audience, I tried to make it really accessible. And I hope it'll reach an audience of people who want to better understand where this doctrine came from. And I hope that what readers will take away is a better sense of the process that produced the doctrine. rather simple.

Austen Parrish 8:12
If that makes sense. That makes a lot of sense. Well, you know, you end the book on noting, kind of a really interesting point that those who want to see more regulation of money in American politics will need to focus beyond on just who's sitting on the Supreme Court. And maybe you can talk a little bit about that conclusion and, and why that's so important to think about it and that sort of broader term rather than than just the justices themselves.

Ann Southworth 8:35
And to be clear, I think it's very important to pay attention to the composition of the court and the behavior of the justices. They surely are the most important players in the story I tell in this book. But the constitutional law that now governs the regulation of money politics is the product of many decades of investment in the legal theories and institutions, and networks, coalition building messaging. And those who think we need more regulation of money in politics, or big money in politics, I think need to pay attention to other ingredients of constitutional change, not just the justices, and also to all the arenas in which public policy is made. They need to think creatively about the kinds of long term investments necessary to accomplish the change they seek. And so an approach that just focuses on the justices and how they behave is just too narrow.

Austen Parrish 9:35
You know, that resonates with me and some of the things we're trying to teach our students about being good lawyers. Being a good lawyer means thinking on so many different levels. Seems your book sort of illustrates that and sort of the broadest way, not just strategy, but also how you can be thoughtful about how you might engage in making a change in whatever area you're at. Does that sound right?

Ann Southworth 9:53
I like that connection. Yes, I agree. Good, good.

Austen Parrish 9:56
The other thing, at least what I got from the book is how much it shows how loyal or advocacy organizations, and others project really radically different views about campaign finance regulation, maybe this is the polarization you were talking about, and also the First Amendment and the role of money in politics. Maybe you could talk a little more about those different perspectives. And you know how that comes across in the book itself? Yeah.

Ann Southworth 10:19
Well, I spend a whole chapter on this issue. But I'll try to generalize. And of course, this will be overly simplistic, but those who challenge campaign finance regulations generally characterize campaign spending and contributions as political speech, and they characterize the regulation of money and politics as a form of censorship of speech. Those who favor campaign finance regulation, claim that regulation is required to protect democracy, including protecting democracy from corruption, systemic corruption, but also advance other foundational constitutional values and some of those constitutional values that are in the First Amendment itself. listeners will have to read the book to get more nuance.

Austen Parrish 11:08
Well, I think that's a good point. I think this whole sort of podcast interview is a little bit of a teaser, because we don't have time to get into the depth of the book. But what chapter is that that goes into that description that you've probably just talked about? That is chapter seven, but we'll have to put a flag on that to our listeners. The other big thing that big money unleashes provides insight about is about constitutional development broadly. And as you said, it touches on how the First Amendment has been used to challenge regulations. But you make the point that it's not just in campaign finance, but it also is broader than that, that the First Amendment has been a tool in a range of areas. Can you talk a little bit about that broader lens that you mentioned in the book?

Ann Southworth 11:46
So, critics argue that free speech doctrine has been used to defeat all kinds of regulations, some of which have little to do with speech or expressive conduct. And so critics worry, for example, about how arguments about free speech have been used to defeat economic regulations, and to undermine anti discrimination laws. And so some of those who advocate strong versions of free speech, sometimes they're talking about different aspects of the ways in which free speech doctrine can be used for the end state favor?

Austen Parrish 12:23
And the book goes into that. Yes, yeah. The other thing that I noticed is not only do you have this deep discussion of what the lawyers were doing, and thinking and their own perspectives, but you also know that the current law and campaign finance is out of step with public opinion that it's become divorced over time for what most people are sort of doing that. Can you talk about that? How is that and why should that be concerning? Yeah.

Ann Southworth 12:44
Well, poll after poll shows that Americans across the political spectrum, believe that our campaign finance system is flawed. Meanwhile, the Roberts Court has struck down or severely limited nearly every campaign finance regulation it has considered, and whenever there's a big gap between public opinion and the Supreme Court's rulings on issues are debatable issues of constitutional interpretation, questions arise about the courts authority to tell us what the Constitution means.

Austen Parrish 13:17
That makes a lot of sense. You know, I want to go back to the start. And you said you were inspired by your long term interest in the First Amendment and these issues. And then your past book, your prior book also sort of set the groundwork for this. I also saw it in the book, you mentioned a 2019 conference that the Law School held on lawyers and constitutional change, which seems to fit in this. Can you talk a little bit about that conference? And how did it impact the way you were thinking about these issues that you've now teased out in your book?

Ann Southworth 13:44
It was a fantastic conference that brought together political scientists, and historians and legal scholars to think about these big questions about the roles of lawyers in constitutional change. And I found the conversation at the conference and the papers delivered at the conference just incredibly helpful to me and thinking about writing this book, it gave me a chance to test some of my arguments. And to learn from these terrific scholars.

Austen Parrish 14:13
It makes sense, it seems to me if I'm hearing the people who want to read this book, or people who are interested in campaign finance reform, but it also sounds like you're going to have a group of people that are interested, just learning about more about the First Amendment and how that's impacted Supreme Court thinking. Sounds like you got a third group of people who are just interested in how lawyers do things and the way lawyers act and have an influence on society and some of the big issues and and then seems there might be even a broader group of thinking about constitutional change. More broadly. Have I got that right as some of the people that might be most drawn to your book and taking different insights of it for for different areas.

Ann Southworth 14:48
I hope all those audiences will be interested.

Austen Parrish 14:53
Well, I think that's the nice thing about the book is that it has this broad appeal, but it seems to not only tell an interesting story about firsthand And campaign finance, but also has these broader implications for many other areas of the law and, and other things that are interested about how lawyers make an impact. And maybe we could talk a little bit about that, because I know we've only scratched the surface of the book. But I'd like to spend a little bit on your broader work at UCI law and your students. Your career your research, or teaching or writing has really been focused on studying the legal profession and lawyers and their impact. And maybe, how did you get into that research? And how did you get into studying lawyers and how they make change, whether that's constitutional change, or other changes in the world?

Ann Southworth 15:33
You know, you mentioned early in our conversation, the pivotal people in your life, including professors in law school, who made a real difference, and that again, arises for me here, I've been interested in issues about lawyers roles and responsibilities since at least the second year in law school, when I struck up a conversation with Robert Gordon, who's a brilliant scholar of the profession and historian of law. And I ended up writing my law review note with him as my advisor on the role of lawyers in marketing, tax shelter opinions. And then as a young lawyer, I found some of the literature on public interest lawyers, just not consistent with what I was seeing on the ground as a lawyer who was doing a lot of pro bono work. So I decided to study civil rights and poverty lawyers in Chicago to launch an empirical study. And I've been studying lawyers ever since.

Austen Parrish 16:29
Here at UCI, you teach this really innovative course on the legal profession? Did you have that course when you were in law school?

Ann Southworth 16:35
No. In fact, I don't think I took an ethics course at all in law school, but I, I was thinking about it and writing about it in my independent research.

Austen Parrish 16:45
Oh, that makes sense. It will maybe you could talk a little bit about the course. Because it's, it is ethics, which you all law schools teach. But it's it's much more than that. And maybe you could talk a little bit about the course and why it's unique.

Ann Southworth 16:56
Yeah, so it's standard in law schools to teach and require courses on ethics. That is to teach students about the rules of professional conduct and other law that governs how lawyer lawyers comport themselves in their professional lives. But our course is distinctive, because it applies a broader lens and tries to do so much more to prepare students to navigate successful, rewarding and responsible careers in law. So we teach students about the variety of work that lawyers do, the different types of organizations in which they practice, the incentives and pressures that they'll confront and various practice settings. And we introduce them to an empirical literature on lawyers. What do lawyers do? And what are some of the psychological processes that sometimes lead lawyers astray? What do their relationships with clients look like? What are different sources of professional satisfaction? How do they make careers? And then on top of all that, we also introduce students to big picture questions about the profession, about globalization and technology and how the market for legal services is regulated and all kinds of big picture questions.

Austen Parrish 18:14
It strikes me as odd that law schools have only really recently turned to doing that. And, you know, I think, classically, you think law schools do fairly well and teaching law teaching the doctrine and how to think like a lawyer. And then it seems like we were a little later to getting to the idea of clinical education, although by the time you get to the 2000s, most schools have a pretty robust clinical program and teaching students the skills of lawyering, but it's still It seems rare. And I'm very proud that we're, I think one of the few schools that also thinks that core to the education has to be learning a little more about what lawyers do. And I'm struck whenever I talk to a new student, they seem to have a sense about what it means to practice big law in New York. And they sort of have an idea of human rights work in Cambodia, but they don't really understand what most lawyers do most of the time. And that course, just seems so so critical, just providing a foundation for students to sort of understand what it is that lawyers do how they make a difference.

Ann Southworth 19:09
I agree entirely. I think we all owe it to our students to provide them that kind of information, they need a really comprehensive look at the profession they're preparing to enter. So at a minimum, so they can find a nice fit between their values and skills and priorities and a practice in a career

Austen Parrish 19:32
That seems so important just for that sort of basic sort of understanding of how to launch a career and how to do it. But it also seems these days, so important for just long term success in the law, because lawyers are so mobile and they move so much more than they used to. And so this idea that you're just going to have a linear path and not having that idea of sort of the breadth of what you could do seems really a disservice if you don't provide that basic information to students.

Ann Southworth 19:58
I couldn't agree more And I also think that we should be preparing our students to be leaders, maybe not right out of law school, but leaders of the profession. And to play that kind of role. They just need a broad perspective on that enormous variety in the profession, what lawyers do. And in order to play that role, they just need to be well informed about the bigger picture.

Austen Parrish 20:22
Yeah, I liked that. I liked that connection to leadership, because I do think if you want to be a good lawyer, you need to think about sort of what are the attributes of great lawyers and and a lot of that does seem to be leadership and networking and playing a role in the community as much as you're playing a good role in the courtroom or in the boardroom or wherever you're practicing. And so you I've been struck since I've been here, how many of our graduates have gone on to leadership positions in nonprofits and government agencies and local bar associations, regardless of what their underlying practices? And perhaps that's a little to do with the course? No,

Ann Southworth 20:58
I love to think that that's true. And I agree with you. And I'm sure you know that the empirical research bears out the claim you're making about the connection between service and networking in a community and in finding ways to be useful and to serve as leaders that all that benefits lawyers in their long term career trajectories.

Austen Parrish 21:20
On some of the earlier podcast episodes, I've been interviewing these fabulous lawyers, and really senior states, people in Orange County, often they talk about the role of public interest and pro bono in their career and how community service has helped them sort of expand not just their satisfaction with their job, but also their ability to get ahead. And it seems like that ties in nicely what you've just talked about, too.

Ann Southworth 21:42
I think that's right.

Austen Parrish 21:45
I know, your teaching legal profession. Well, actually, before I get to that, you know, if I try to connect that course, to sort of some of the broader themes of the book, maybe you could talk a little more about the role of lawyers in our society if, if the book at what heart is sort of this idea of that protection of democracy? And how First Amendment connects to that or how it doesn't campaign finance? Can you talk a little bit about the role of lawyers? And why are lawyers so important in a democratic society? And in what ways?

Ann Southworth 22:13
Austin, I think a really good answer to that question would require much more time than you want to give me and, and perhaps more than I prepared to offer up. But lately, I've come to like a really simple statement in the preamble to the model Rules of Professional Conduct. It says a lawyer, as a member of the legal profession, is a representative of clients, an officer of the legal system, and the Public Citizen having special responsibility for the quality of justice. And I used to just read pass that language without thinking much of it. And it's a rather modest statement of lawyer's professional responsibilities. But I've come to like it. And I fear that these days, many lawyers tend to neglect the second and third of these roles, what I think of as the public facing roles and duties of lawyers, as officers of the legal system, and public citizens having a special responsibility for the quality of justice. And I think we at UCI really emphasize these aspects of lawyers, responsibilities, and they are, of course, extremely important responsibilities of all lawyers in a constitutional democracy.

Austen Parrish 23:30
I like that idea of special obligation. And, you know, the one thing I, from my own perspective, sometimes I'm dismayed when I'm watching the national news or whatnot, you know, I can't say good leaves me with good feelings with lawyers all the time when you see something. But then again, when I'm meeting with individual lawyers that are here in the community in Orange County, I'm normally buoyed by just the just how much people view their role to be sort of that broader obligation. And it at least makes me feel fairly positive, because I do think maybe many, many lawyers or colleagues do think about it, even if they don't articulate it in that way. But that's a nice, that's a nice formulation. Is that something you talk about in your legal profession? Course

Ann Southworth 24:08
It is, it is, and i i to find inspiration from the lawyers in our community. I also find it from our students who really are earnest. They want to, to be responsible members of this profession, and they really searching for how to navigate careers that are successful, but also responsible and rewarding and all the best ways.

Austen Parrish 24:33
I have to say the one thing I've seen change over the last 20 years I've been in the academy is that idea that students are coming in not only wanting to be, as you say successful and but also making a difference in a very broad way. And I certainly feel that with this year's class. I don't know if you feel absolutely. Well, we've only been we've been I guess it's been a few weeks now. But what are your thoughts about this year's entering class and how how's the course going this semester?

Ann Southworth 24:59
Well I have one section, so one quarter of the one hour class. And that's the group I know well, but they are fabulous. And we are having a great time, or at least I am having a great time in the office, but I believe they are really engaged too. It's been great fun.

Austen Parrish 25:16
You know, I've struck the same way that the engagement of this year, although it's true for last year students too, but it's fabulous. And it's one of the reasons for the law school's existence is to attract this amazing talent from around the country and throughout California, and bring them to Orange County, it's been remarkably successful. Based on the measurement of the current students. I keep saying to people, I don't know how I would have gotten to law school these days, based on based on the quality of students we're seeing,

Ann Southworth 25:41
I always ask students to write introductory memos for me, and I read them all the first week of class. And I'm always just done by how interesting and wonderful these students are. And my experience with them in the classroom just confirms my sense that we have a remarkable students.

Austen Parrish 25:58
Yeah, it was one of the best things about being a law professor is to be able to have that sort of connection with this next generation of leaders. Back to your book, any last minute thoughts or things that we should think about somebody who's thinking about picking up the book, things they should consider and the last words of wisdom before we sign up? Read it. And

Ann Southworth 26:17
I'd love to know what you think I look forward to. I've spent so much time in my office writing the book, I'm eager to know what people think. And

Austen Parrish 26:26
if somebody wanted to get hold of the book where it's most easily able to find it.

Ann Southworth 26:30
It's released on December 12. But it's possible to pre-order it in all the usual places right now.

Austen Parrish 26:37
And the part I saw was just fabulous. So I'm very much excited to seeing this finally in print. It's been great to have you on the podcast. Thank you for joining us.

Ann Southworth 26:45
Thank you so much, Austen. It's been delightful.

Austen Parrish 26:48
Congratulations on a really terrific book.

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Transcribed by https://otter.ai