The Dangerous Failure of McCain-Feingold

Among the many critics of campaign finance reform, Bradley A. Smith may be the only one who has enforced the law he despises. From 2000 to 2005, including a one-year stint as chairman in 2004, Smith, a Republican, sat on the Federal Election Commission. There he was tasked with enforcing the Bipartisan Campaign Reform Act of 2002, more commonly known as the McCain-Feingold Act. After years of withstanding the ire of John McCain and other advocates of political speech regulation, Smith founded the nonprofit Center for Competitive Politics, whose mission is to "educate the public on the actual effects of money in politics."

Smith, who also teaches at Capital University Law School and practices law at Vorys, Sater, Seymour, and Pease, spoke with reason Editor in Chief Matt Welch in July. A longer version of the interview can be seen at reason.tv.

Q: Catch us up on how McCain-Feingold has been implemented, and how that is different from what was intended.

A: The law's purpose was always kind of vague, shifting. It was sold to the American people like a 19th-century patent medicine. If you think campaigns are too negative, you want McCain-Feingold; you think they're too long, you want McCain-Feingold; you think too much is spent, you want McCain-Feingold; you think they're too nasty, you want McCain-Feingold; you just hate politics, you want McCain-Feingold. But what was generally promised to people was that it would get money out of politics.

I hardly know anybody who would say that those have been achieved. If anything, campaigns seem longer and more negative and more expensive than before. The era of McCain-Feingold is the era of Bob Ney and Jack Abramoff and $90,000 in Congressman Jefferson's refrigerator. You could say that the era of McCain-Feingold is an era of corruption in American politics as great as we've seen since Watergate.

Q: What about disclosure?

A: Let me ask you this question: Imagine if George Bush were to announce here in the fading twilight of his presidency that in order to prevent terrorists from infiltrating American political parties and thus asserting control of American government, we needed to introduce the PATRIOT II Act. The PATRIOT II Act would require citizens to report to the government their political activities, and the government would keep that in a database. Which, by the way, they would then make available to private individuals, like employers, or maybe groups that might want to protest outside your home. What do you think would be the reaction to that law? Well, we have that law already, and it's called the Federal Election Campaign Act, which requires the campaigns to report to the government who gives them money. The government keeps that in a database, and they make that available so that anybody can go online and look the stuff up.

Q: No one is taking public financing in this election. Is this the death of campaign finance reform?

A: The first thing people who believe in political freedom need to understand is that the opposition—the regulators—are relentless. They care about this issue. They care a lot about it. Even now, they are pushing very hard for what they call "full public financing of campaigns." They've come up with this new name, "clean elections." Because if you go to voters and say, we're going to give candidates your tax dollars to campaign with, they'll vote against it. But if you ask them to vote for "clean elections," they'll vote for it, because it's kind of like asking voters to vote for a good economy or warm fuzzy rabbits.

The curious thing here is that they're using the failure of McCain-Feingold as proof that we've got to have full government takeover of campaigns: The only solution, trust us, is more regulation, more of the same. The fact that we're more heavily regulated in our politics than in any time in our nation's history is just lost on them.