The Eighth Congressional District of Indiana encompasses the southwest corner of the state, stretching from Evansville up past Terre Haute. It is a land of small cities and smaller towns, of farmland and pockets of industry. While Indiana has long leaned Republican, the district has a history of razor-thin elections. During the 1970s, its voters picked four different congressmen in four straight elections1—a sharp break from the long-running national pattern of incumbents almost always winning reelection. Owing to its history of brutal political warfare, the district was nicknamed the “Bloody Eighth.”
The 1984 election was the closest ever. A first-term Democrat, Frank McCloskey, initially seemed to beat his Republican challenger, a state representative named Rick McIntyre. But a tabulation error in a single county swung it to the Republican by thirty-four votes out of 233,500 cast. Indiana’s Republican secretary of state certified McIntyre as the winner. Congress, however, was controlled by Democrats, and they refused to seat him, citing unspecified voting irregularities. Instead, the House leadership flew a three-member committee—two Democrats and one Republican—to Indiana to oversee a recount.2
Both parties rushed resources—money, activists, lawyers—to southwest Indiana. One of them was a young attorney named Ben Ginsberg.
Ginsberg had grown up in Philadelphia, raised by liberal parents. He was liberal, too, at first. By the time he was in college, though, his views were evolving. He was turned off by the Great Society programs of the 1960s, and his politics drifted to the right. To his parents’ dismay, Ginsberg registered as a Republican.
Ginsberg had a long face and a stern countenance, which was only slightly softened by a fuzzy, reddish beard. After graduating from the University of Pennsylvania in 1974, he became a journalist. His first real gig was at a weekly paper in New Hampshire, followed by stints at the Berkshire Eagle in Massachusetts and then the Riverside Press-Enterprise in Southern California. His beat there was the county planning commission. The Inland Empire was growing fast, and the commission was flooded with requests for permits to build. Ginsberg had no idea how to read permit requests, which was an impediment to doing his job properly. He figured a law degree might help. He got into Georgetown Law.
Ginsberg never returned to journalism. Instead, after law school, he joined the legal industry, which in the early 1980s was growing at a wild clip. He landed a job at BakerHostetler, which had been founded in Cleveland in 1916 and now was racing, alongside many others, to become a national firm.
Ginsberg got off to a rough start: He failed the bar exam.3 Even so, his journalism credentials meant he was a good fit for a group inside BakerHostetler that specialized in representing media companies. Before long, a partner named Jan Baran asked Ginsberg if he was available to lend a hand on political work. Yes, he was. Baran, an authority on federal and state election laws, assigned Ginsberg the task of researching a thin slice of campaign finance law.4 He was grateful for the ground-level experience, and another assignment soon followed. Baran’s clients included the Republican members of the House Administration Committee. When they asked for a report on the laws governing election recounts, Ginsberg did some investigating and typed up a memo, which as far as he could tell nobody read.
And then it was November 1984, and the McCloskey-McIntyre race was basically a tie. The House Administration Committee was supposed to be adjudicating the recount fight. All of a sudden, Ginsberg’s newfound expertise was in demand. The day after the election, he was summoned to Capitol Hill to brief leading Republicans on the history of recounts. Then he was sent to Indiana to monitor the three-person congressional squad. For months that winter, Ginsberg traversed seventeen counties, examining individual ballots, making sure they were being properly tabulated. As he watched, his anger grew. The Democrats, led by then-congressman Leon Panetta, excluded some ballots, accepted others, and predictably concluded that the Democrat had won—by four votes. McCloskey was sent back to Washington, where he’d serve another four terms in Congress. The experience radicalized Ginsberg.5 This was a stolen election.
Ginsberg spent the next eight years in a series of jobs with the Republican Party in Washington. In the early 1990s, the once-a-decade congressional redistricting process got underway. Ginsberg, by now the general counsel at the Republican National Committee, helped cook up a plan to increase the number of both Republicans and racial minorities in Congress. The idea was to cram as many Black voters as possible into the smallest possible number of districts in southern states. In those so-called “majority-minority” districts, Black candidates were encouraged to run; once in office, they had a reliable path to reelection. Meanwhile, the surrounding congressional districts became whiter, and more Republican, than ever.
The result was twofold: There would be more Black representatives in Congress (though not nearly as many as there might have been if districts had been drawn in a straightforward fashion), and the south would be more of a GOP stronghold. (Southern white Democrats became an endangered species in Congress.) Black leaders liked it, and their support diluted Democratic resistance. Because the initiative deliberately divided the opposition, it came to be known as Project Ratfuck.*6
In 1999, Karl Rove got George W. Bush to hire Ginsberg as the chief counsel for his presidential campaign. During the fateful Florida recount, Ginsberg was the field marshal of a small army of lawyers that included Ted Cruz, Mike Carvin, and Noel Francisco. The battle—the culmination of Ginsberg’s years in the recount trenches—elevated him to national prominence.7 (Bush picked Ginsberg to be the top lawyer on his 2004 campaign, too. He stepped down after acknowledging that he had helped the Swift Boat Veterans for Truth plot their attacks on the Democratic nominee, John Kerry.8)
Ginsberg worked on both Bush campaigns as part of his full-time job at another law firm, Patton Boggs, which he’d joined in 1993. Patton Boggs was a big name in Washington, renowned for its muscular lobbying. That is where Ginsberg met a young lawyer named Don McGahn.
Shortly after Labor Day in 1994, McGahn had showed up for a series of job interviews at Patton Boggs. Despite the presence of guys like Ginsberg, the firm at the time was dominated by Democrats. McGahn, who had recently graduated from Widener University’s law school in Harrisburg, Pennsylvania, surprised his interviewers by asking what they were going to do if Republicans took control of Congress in that year’s midterm elections. His interviewers snickered. This young man clearly had no idea what he was talking about. Democrats had held a majority in the House for the past forty years, and there was no reason to think that was about to change. That didn’t go well, McGahn thought to himself9 as he left the firm’s offices overlooking Washington’s Rock Creek.
Two months later, Republicans stormed into power, led by an ambitious Georgia congressman, Newt Gingrich. (The so-called Republican Revolution was partly a byproduct of Ginsberg’s success at redrawing congressional maps in his party’s favor.10) McGahn’s phone rang.11 Patton Boggs wanted to offer him a job. “You’re either going to be a really good lawyer or you’re going to be a disaster,” a partner told him. “It’s worth one year’s salary to find out.”
And so McGahn got a job. He wasn’t a natural fit—a continuation of a lifelong pattern. Growing up in New Jersey, members of his extended family had been political royalty, deeply immersed in the state’s Democratic Party, but the young McGahn wasn’t into politics, and certainly not liberal politics. He was a kicker on the high school football team and the goalie on the hockey team, but he didn’t hang with the jocks.12 And in the status-obsessed legal industry, which valued Ivy League diplomas above almost anything else, McGahn’s degree from the largely unknown Widener meant he would have “to work harder than those with the more traditional résumés,” as he put it.13
At an early age, McGahn had developed “an aversion to concentrated power.” That gut-level feeling had hardened into conservatism by college, when he watched the Senate confirmation hearings of Robert Bork. Just as Ginsberg had been animated by the Democrats’ theft of a congressional election in the Bloody Eighth, three years later McGahn and a generation of young Republicans were galvanized by what they saw as Democrats’ disgraceful treatment of a respected conservative judge.14
At Patton Boggs, Ginsberg and McGahn quickly crossed paths. Ginsberg needed help on some election litigation, and McGahn was eager to lend a hand to this fellow Republican. Ginsberg was impressed with his work. McGahn, for his part, was amazed that you could make a year-round career out of working on campaigns. “I ended up latching onto Ben, who was an excellent mentor,” McGahn would recall.15 The more the duo worked together, the more McGahn learned about campaign finance and election law.16 It wasn’t the profession’s most prestigious work—being a corporate lawyer was more lucrative, and being a prosecutor was more glamorous—but it was a career, especially for someone who’d come to love politics.
After four years at Patton Boggs, McGahn became an in-house lawyer at the National Republican Congressional Committee. Then, in 2005, he started his own small law firm, McGahn & Associates. One of his first clients was House Majority Leader Tom DeLay, who faced federal indictment for money laundering. A team of lawyers took over a conference room off DeLay’s suite in the Capitol, and McGahn became a fixture. He didn’t blend in: He wore his hair shoulder length and played guitar in an eighties rock group that billed itself as “one of the Mid-Atlantic region’s most exciting and flat-out FUN cover bands.”17 McGahn would perform in spandex pants or a mustard tank top, thrashing on one of his more than thirty guitars.18
One of the other lawyers helping DeLay was Richard Cullen, a genteel former attorney general of Virginia. Cullen admired how McGahn didn’t seem to take himself too seriously. That said, when President Bush nominated McGahn to the Federal Election Commission in 2008, and the Senate confirmed him by unanimous consent—not even bothering to hold a vote on his elevation into the government—Cullen had trouble believing it. What would this cowboy do as part of the federal bureaucracy?
The answer soon became clear: McGahn would do his level best to destroy it. For all his devil-may-care rock-and-roll vibes, McGahn was driven by a visceral hatred of the “administrative state.” Unelected judges, in his eyes, were regularly ruling in favor of unelected bureaucrats, who were trampling the rights of private citizens and companies. “My view had become that the bureaucracy had become its own branch of the government,” McGahn would say. “It was extra-Constitutional.”19
That was the attitude McGahn took with him to the FEC, whose mandate was to enforce campaign finance laws and regulations. His goal was to bring to heel what he saw as an out-of-control agency. He voted to loosen curbs on money in politics. He banded together with the other Republican commissioners to slow the agency’s rulemaking. He even pushed to make it harder for staffers to share information about suspected crimes with prosecutors. That caused such an uproar that the FEC’s top lawyer resigned.20
In 2011, Donald Trump was eyeing a presidential run, and he was accused of violating FEC rules by sending money through the Trump Organization to the ShouldTrumpRun website. The commission’s staff recommended that the agency open a formal investigation. McGahn (and his Republican colleagues) voted against the recommendation, blocking the investigation.21
McGahn did a good job of handcuffing the FEC. By the end of his tenure in 2013, even routine decision-making had become an immense hassle, and companies and other groups enjoyed greater freedom to spend money however they wanted to sway elections. By now McGahn had become something of a folk hero within Washington’s conservative legal circles; Senator Mitch McConnell, a fierce opponent of restrictions on campaign spending, was a particularly enthusiastic fan.
After a nearly fifteen-year hiatus, McGahn returned to Patton Boggs, where he was reunited with Ginsberg—just as the law firm was beginning to implode. Patton Boggs had been hurting ever since the 2008 financial crisis, and now, its revenues plunging and its partners defecting, its leaders were hastily engineering a merger with a Cleveland-based law firm, Squire Sanders. “It was kind of in a death spiral,” McGahn would say.22
This was no place for prominent Republican attorneys. McGahn, Ginsberg, and a third partner, Bill McGinley, hired a headhunter, who started shopping them around to some of the biggest firms in D.C. The key was to find a shop that would give them something approaching free rein.
The trio played footsie with about a dozen firms. Jones Day quickly emerged as the leading contender. It was huge, it had a thriving Washington office and corporate litigation practice, and its leaders were conservative. Plus, the Patton Boggs crew would fill a void. While Jones Day had built up a formidable practice advising companies on how to navigate the federal bureaucracy, the firm didn’t have a practice advising politicians on how to navigate election and campaign finance laws. And without the relationships that came from helping people win office, it was harder for Jones Day to wield influence on Capitol Hill and in the White House. For a firm with aspirations like Jones Day’s, that constituted a big hole.
It helped that Ginsberg had known Noel Francisco and Mike Carvin for years (dating back to the Bush v. Gore days for Francisco and to the Mary Matalin days for Carvin). At the outset, Ginsberg told Francisco that he recognized that Jones Day, despite its conservative reputation, probably employed a lot of Democrats. Would it be a problem to bring in a team of hotshot Republicans? It would not, Francisco assured him.
In May 2014, it became official: Jones Day was hiring Ginsberg, McGahn, McGinley, and their associates to create a new political and election law practice focused on advising Republicans. “The arrival of Ben, Don, and Bill further cements our position as the go-to firm for challenging government overreach and regulation,” Francisco cheered to the Washington Post.23
Jones Day was 121 years old. The hiring of the small Patton Boggs team would turn out to be one of the most consequential decisions in the firm’s history.