For tea party challengers, running against establishment candidates doesn’t just mean bucking the ideological status quo. It also often means shunning the institutional and organizational conventions that have propelled candidates to victory for decades.
Perhaps there is no better example of the price of engagement for these candidates than in Mississippi, where tea party challenger Chris McDaniel has not officially conceded his race and instead accused incumbent, six-term Sen. Thad Cochran of electoral foul play.
When McDaniel took the stage on the election night of June 24, vowing to fight on, he did not utter the usual refrains heard from candidates seeking to wage a war in court. There was no promise to file a complaint first thing the next morning, no suggestion of forthcoming injunctions, no real legal jargon of any kind in his remarks. Since then, McDaniel's campaign has not detailed its formal plans to contest the election, even though his campaign’s website is still asking for donations and volunteers.
Chief among the disadvantages of running an insurgent campaign is that when it comes to contesting close elections, tea party-backed candidates lack access to an expensive network of legal defenders who can be leaned on for help — and may even be turned away by top election law attorneys with loyalties that lie elsewhere.
“Most people will want to sit out,” said Republican lawyer Dan Backer, one of the few Beltway lawyers who represent conservative clients running against the party mainstream. “It's like in ‘The Sopranos,’ when Tony and Carmela are looking at getting a divorce and Tony calls all the divorce attorneys immediately to make sure she can't use them.”
McDaniel’s lack of resources and outside financial support is another significant obstacle to launching a formidable legal challenge. Before the competitive three-week runoff, McDaniel had a meager $60,000 in the bank to continue his statewide race. Most of the campaign on his behalf was conducted by outside groups, many of which have since his loss pulled out of the fight. On Wednesday, an outside conservative electoral group told Breitbart News it was filing suit against the secretary of state, but unlike establishment organizations, there typically is not a cohesive network or organized approach when outside groups press election controversies.
“There is a diametrical imbalance in the resources available to establishment candidates and conservative challengers,” said Backer, who also represented Shaun McCutcheon, the lead plaintiff in this year’s marquee campaign finance case. “The cost and burden of having the [necessary] level of legal talent on the ground in a primary is astounding.”
The National Republican Senatorial Committee, for its part, has spent more than $170,000, on “legal consulting” from mostly D.C.-based firms in this election cycle to date, according to a review of its disclosures to the Federal Election Commission.
Backer noted that legal consultation is an “easy place to cut costs” for upstart primary candidates who buck even the most essential political activities such as call time with donors to fundraise. Most conservative challengers don’t have the resources up front to adequately identify and catalog problems with votes as an election is happening, which puts politicians like McDaniel at a disadvantage. Backer pointed to a House race in Nevada, where a conservative candidate conceded a race he believed he lost because of voter fraud (nonconservatives have disputed this view) because of a lack of resources.
“You can't have poll watchers or rapid response — better legal and more legal might have created greater opportunity to identify mechanical error or fraud,” Backer said.
But perhaps the most echoed refrain from the half-dozen election lawyers approached for this piece was that there is a strong financial incentive for lawyers at big firms to avoid contact with challengers so long as the party organizations remain stable, well-paying clients.
“If you're a lawyer that does a lot of work with one of the party committees, you probably wouldn't take on a challenge to an incumbent,” said Elliot Berke, a political law lawyer at Berke Farah and who had previously served in several legal roles on Capitol Hill.
Most lawyers conceded that this tension was created mostly by the financial interests of various firms and not from direct pressure from national groups like the NRSC, National Republican Congressional Committee or Republican National Committee. They were quick to point out that lawyers face a different set of standards, even in the political arena, from other political consultants — and that everyone’s right to a lawyer should, in theory, allow legal professionals to represent both establishment and conservative candidates in different races, so long as there are no conflicts of interest.
But there have been warning shots about what will happen to political businesses that go against the party. The NRSC, for example, very publicly fired one of its ad makers, Jamestown Associates, in November 2013 for also having the tea party-backed Senate Conservatives Fund on its client list.
Chris Ashby, a lawyer who has had RNC and NRSC contracts but also worked this cycle with Matt Bevin, the challenger to Senate Minority Leader Mitch McConnell, and Bryan Smith, who challenged an Idaho House incumbent, said he has never felt pressured by national groups.
“I have friends in the counsels offices at the national party committees, I talk with them from time to time, and no one has ever threatened or otherwise made an issue out of my work for Bevin or Smith, and if I've been ‘blacklisted,’ I'm certainly not aware of it,” Ashby wrote in an e-mail. “When I signed up with Bevin and Smith, I was aware of the aggressive position that the NRSC in particular had taken with one of its media vendors, but I think the issue plays out differently when it comes to lawyers.”
Backer, who defends conservative clients, said the real issue was not explicit pressure from the groups, but that the financial realities of retaining legal counsel do not favor the clients he represents: “We're free-market people — the establishment has most of the lawyers, because they have most of the money and they pay fees I couldn't even think of asking.”
Joseph Birkenstock, a Democratic election lawyer, agreed that supporting anti-establishment candidates is “not as much of an ethical problem as a business problem.”
He also pointed to the client perspective, suggesting that conservative challengers don’t want to be bound to the establishment and therefore bound to the practices of previous candidates, like retaining counsel.
“Some of the insurgent groups, and I've seen this on the progressive side, too, they are running against the entirety of what they see as the establishment. A lot of people as they approach it like, ‘We're here to burn Rome,’ I think their view might be, ‘Fine that's how you guys did it in the past, but we're coming at it with a different strategy,’” he said.
Somewhat surprisingly, this is a point on which Republicans and Democrats agree. Berke, the Republican lawyer, worried that if and when conservative candidates do retain counsel, their view that their candidacies should be unconventional and grass-roots might disadvantage them in a court of law.
Running a tea party campaign on the trail might work. On trial? Maybe not so much.
“When it comes down to it, an electorate might be attracted to an unconventional candidate, but I think you're going to have a very hard time finding a judge who is attracted to an unconventional approach to interpreting the law. That's probably not going to happen,” Berke said.
Washington-based lawyers working disputed election results cases rely on in-state lawyers to help them execute a strategy, as legal counsel needs to have passed the bar in the state where they are staging a challenge.
In the case of McDaniel, this makes his road even tougher, as many people across Mississippi, particularly in legal and political circles, have some attachment to Cochran, who has served nearly 36 years in the Senate. Friends or friends of friends aren’t going to want to take up arms against the incumbent, especially in what has already been a bruising and deeply personal race.
The McDaniel campaign declined to comment on the candidate’s legal representation.