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 3 of 5)

Smith: Probably reading. There are just lots and lots of reports. The way the commission is structured, we have the general counsel on a short leash. We have to approve any subpoena, and so we are constantly reviewing paper that comes up from the general counsel’s office urging us to take one action or another and asking us to make a decision on it.

REASON: So you still think that much of campaign finance law is unworkable?

Smith: Yes, probably even more so than I did before. I’ve seen the particulars, the impact it’s having at the grassroots and all the clever ways that are out there for the people who have the resources and lawyers to get around the law. They’re always talking about having to close this loophole or that loophole. The government spends $2 trillion a year. It claims the right to regulate everything. Folks are going to figure out a way to participate in the political process.

One of the things I have been pointing out about McCain-Feingold is all the things it will not do. It won’t prevent pardons of Marc Rich. It won’t prevent people from giving donations to the presidential library. It won’t prevent them from hiring a well-connected lawyer like Jack Quinn. It’s already illegal to pay a bribe. It’s not going to prohibit Chinese contributions. That’s already against the law. It’s not going to stop people from funneling contributions through other people. That’s already against the law. It really doesn’t do much, and people are going to find other ways to be involved in politics.

REASON: Let’s talk about McCain-Feingold. You’ve said it’s just another way for incumbents to entrench themselves.

Smith: Definitely. Not only does the system already favor incumbents, but look at the amendments they passed for McCain-Feingold. The first one was the anti-millionaires amendment. Challengers need more money than incumbents because they have lots of trouble raising money under contribution limits. One of the few types of challengers who can threaten incumbents is millionaires. So immediately the Senate passes a rule that will help them against these millionaire challengers. I guess the constitutional theory is that people running against millionaires are not easily corrupted but that incumbents who are running against average citizens are.

The second amendment they passed was one giving themselves the lowest guaranteed rate for television and radio advertising and prohibiting stations from bumping their ads. But if you and I get together and want to run some ads critical of the senators, we don’t get that rate or that restriction.

They also passed an amendment making it harder to run negative ads. The bill would require candidates to personally have their faces on the screen if they want to say negative things about their opponents. I don’t know whether that will stop negative ads. But negative ads are most effective against incumbents. Generally, if you want to beat an incumbent, you first have to explain to people why the incumbent shouldn’t be in office. Then you can go about selling yourself. So again, it’s a provision that is clearly designed to help incumbents more than challengers.

REASON: McCain and Feingold say that we need to squeeze money out of campaigns, that it is corrupting, that it changes the way politicians act. Are they wrong?

Smith: Money works a lot of ways in politics. In terms of getting somebody elected, you’d always prefer to have more money than less money. We do know quite well that the key thing is to spend enough. Just what is enough will vary depending on what state or district you are from. A couple of years ago, it was $600,000 for House races. Any challenger who spent less than that lost, and any who spent at least that much had about a 40 percent chance of winning. It really didn’t matter what the incumbent spent. Spending helps incumbents, but it helps challengers more. Basically any candidate, if they spend enough money, can make it a competitive race.

Another thing we know, which follows from making races competitive, is that any money that is spent will be informative to the public. Spending increases the understanding of where candidates are on the political spectrum and of what their views are on the issues. Whether it increases or decreases turnout depends on whether it is spent to increase turnout or decrease turnout. But either way, it increases knowledge, and that’s important in showing that it’s part of our speech rights. That’s the role of money in how it helps people get elected. It helps challengers more than incumbents. It’s not the be-all and end-all, but it’s important.

As I’ve said, there is very little evidence that money is out-and-out corrupting. As important, there are very few cases where campaign finance laws do anything to stop straightforward corruption, with people walking off with sacks of money. Most of that would be illegal, anyway, under bribery statutes. Money probably plays some role in getting people access to congressmen and senators, even though most donors never ask for access and congressmen and senators meet with people every day who’ve never made a donation. But it probably will help in some cases.

To the extent that that’s true, I’m not sure it’s a bad thing. Congressmen and senators spend their days meeting with other government officials, and it may be good for them to meet with some private individuals from time to time. It’s not like getting money out of the campaign system would mean that congressmen would meet with average Joes from their district. It would probably mean that they would spend more time playing golf or meeting with lobbyists.

REASON: Money doesn’t change the way politicians vote?

Smith: It doesn’t change politicians’ votes in a straightforward way: “This guy gave me a contribution, and I’ve got to do this.” It’s probably a factor in the decision-making mix, and the congressmen and senators themselves don’t know how important it is. They know who contributes, or at least in many cases they do. But the research shows that donors give to candidates who already think like them, not the other way around, and then they provide the candidates with information that might be useful to them.