Prof. Smith Goes to Washington

Federal Election Commission member Bradley A. Smith takes on campaign finance laws.

Michael W. Lynch from the July 2001 issue

(Page 2 of 5)

Smith: My views have not changed a whole lot, although I have found that the regulations are worse than I thought, especially in how they effect grassroots politics. This comes from seeing cases involving small county committees and losing primary candidates, and so on. I haven’t seen too much to make me think I was wrong about campaign finance laws, and I’ve seen many things to make me think I was not strong enough in my criticism.

For example, during my time in office, I have begun to question if there’s any benefit from disclosure. I’m not seeing that we are getting many benefits out of it, and it’s one of the areas where we are really ending up discouraging grassroots organizing. The disclosure regulations are some of the most burdensome. Disclosure limits free speech because it allows the government to retaliate against people. The Supreme Court has consistently held that people do have a right to anonymous speech. The cases speak for themselves.

The most prominent one is probably NAACP v. Alabama (1964), when Alabama wanted to know who was funding the NAACP’s activities. We can see how that would be intimidating. Then there’s McIntyre v. Ohio Elections Commission (1995). McIntyre was doing anonymous brochures against a school tax, which all the school officials supported. She had children in the schools who needed grades and access to such things as athletic teams and bands. She didn’t necessarily want her name known, even though it was important for her to fight this issue. Another major case was Brown v. Socialist Workers ’74 Campaign Committee (1982). The socialists rightly said, “If we have to reveal our donors, they won’t give us money. They will get harassed. Their businesses will get blackballed and that sort of thing.” Disclosure can be more inhibiting than people think.

REASON: What’s the most disturbing case you’ve dealt with so far?

Smith: I’ve come across a variety of cases that are disturbing in different ways. Some cases are disturbing because I see corruption going on. Some of my critics have argued that I’ve said there’s no corruption with money in politics. That’s never been quite right. What I have said is that corruption has never been anywhere near the problem that people think it is, that trying to get rid of corruption comes with a price, and that I’m not sure you can get rid of it. So when I’ve seen cases when there really does seem to be corruption, it’s disturbing because a) I don’t like to see the corruption, and b) it is the price we’d pay for the kind of views I have.

REASON: What kind of corruption?

Smith: Well, to be honest, I can’t tell you because the cases I am thinking of are still in the process. But they are the kind of cases where people complain about someone selling access. But what I find most interesting is that the real problem in these cases is not that constituents are corrupting the government. Rather, the government is corrupting the people. The officials are the ones saying, “Look, if you want this or that, this is what you have to pay.” That’s discouraging to me. But I don’t think it changes my overall view or is inconsistent with my view, which is that the problem is not so great as people think and efforts to solve it cause more problems than they solve.

Other cases disturb me in different ways. These are the cases where I see campaign finance laws impacting the ability of Americans to participate in the political system. I am disturbed to the extent to which filing a charge against a campaign or a person is just a political weapon. Political partisans file virtually all the cases we get. They often don’t care what the end result is, just so long as they can get it out there and have a press conference and claim that “serious allegations have been made” against candidates they don’t like.

I’ll give you a specific case. A fellow from Texas named Mac Warren ran for Congress last fall. He lost in a four-way primary and spent quite a bit of his own money to run. Not $100,000 or anything, but enough for most of us to say, “Wow, he took a hit.” He ran a credible race but he didn’t win. In the primary he spent some money to send out a couple of pieces of literature that had “Vote for Mac Warren for Congress” written all over them. But his campaign forgot to put on the legally required disclaimer that specifically said that the campaign committee authorized the message and that disclosed who paid for it. So we get a complaint and the campaign gets fined. The campaign treasurer is personally liable for the fine and at that point no PAC is going to give them any more money. Once those charges get filed and fines levied, they don’t have any more money. They can’t raise any more money. These laws are just a way of telling people that we don’t want ordinary people in politics.

People send the FEC letters telling us that the lesson they learned is that they will never be involved in politics again. It’s just not worth it, or it’s clear that this is intended only to be done by professionals. Or that average people are no longer supposed to be involved in campaigns.

REASON: What’s the most ridiculous case you’ve come across?

Smith: A candidate for Congress took out a loan and put the money into her campaign. Her husband co-signed on the loan. Of course, you can contribute as much of your own money as you want to your campaign. But once the husband co-signed on the loan, we deemed it to be half his money. So when she dumped it all into her campaign, we said that meant he contributed more than the legal limit and we had to fine him. If our goal is to prevent husbands from corrupting their wives, we need to give the FEC a whole lot more power. We’ve got similar cases of sons giving too much money to their parents and cases of parents giving too much money to their sons. Where’s the corruption here? Why are we doing this? And that’s true of much of what we do here.

REASON: What do the fines typically run?

Smith: In that kind of case they are pretty small, a couple of thousand dollars.

REASON: What do you spend most of your time doing as a commissioner?