Prof. Smith Goes to Washington

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

The campaign finance reform establishment went absolutely insane in the spring of 2000. That's when Sens. Mitch McConnell (R-Ky.) and Trent Lott (R-Miss.) worked a deal to persuade President Bill Clinton to nominate Bradley A. Smith, a professor of law at Capital University in Columbus, Ohio, to the Federal Election Commission. (In exchange for the Smith nomination, the senators guaranteed a vote on 16 Clinton appointees to the federal bench.)

Vice president and presidential candidate Al Gore—remember him?—took time out from scaring senior citizens about losing Medicare to promptly declare Smith "unfit for office," even though his own administration had nominated the guy. The Senate's dynamic duo on campaign finance issues, Sens. John McCain (R-Ariz.) and Russell Feingold (D-Wis.), similarly declared its staunch opposition. "Sending Brad Smith to the FEC is akin to confirming a conscientious objector to be sec?re?tary of defense," huffed Vietnam vet McCain during a marathon, 10-hour debate over Smith's confirmation. "I stand proudly by Theodore Roosevelt in believing the 1907 [campaign finance] reforms were valid," McCain continued. "Mr. Smith does not." Feingold expressed a similar sentiment, if in a more hackneyed formulation: "Prof. Smith on the FEC would really be a case of the fox guarding the hen house."

Newspaper editorialists were conflicted over whether the Harvard-educated and widely published prof was technically fit for the post. "Smith is clearly qualified," opined The Washington Post. "His background in no way qualifies him for a spot on the commission he would just as soon abolish," wrote The Atlanta Journal and Constitution. But virtually all agreed that he was the wrong person for the job. The Post explained the reasoning well: "He simply does not believe in federal election law."

That may well be the case. Before signing on to the FEC, Smith wrote extensively on the mind-numbing topic of campaign-finance and election law. His findings were quite radical, at least from the point of view of professional reformers and regulators. Smith concluded not only that restrictions on campaign donations are unconstitutional, but that they degrade America's political process by strangling grassroots efforts in a tangle of red tape. Moreover, further efforts to regulate campaign contributions increase the advantage of professionals and insiders over ordinary citizens, provide the press with more power, and increase the already considerable electoral advantage of incumbents.

"We must limit, fine, and penalize. And then all will be well. We will weed out corruption, and have true political equality," said Smith in a speech last year at Catholic University, mocking the mindset of reformers. "I would suggest to you that campaign finance regulation is like Frankenstein's monster, well-intentioned, but hopelessly misguided and ultimately irredeemable, yet impossible to kill, and creating havoc wherever it goes."

Make no mistake: Smith thinks the monster needs to die. In a 1997 Wall Street Journal opinion piece, he called for a repeal of the Federal Elections Campaign Act, the very law the FEC was created to administer. After being confirmed as an FEC member in May 2000, Smith hardly toned things down. He was sworn into office by Judge James L. Buckley, the former New York senator whose challenge to the 1974 law culminated in the precedent-setting Supreme Court case Buckley v. Valeo. (To underscore his stance, Smith held his swearing-in ceremony at the Cato Institute, which is highly critical of campaign finance laws.)

Earlier this year, Smith published Unfree Speech: The Folly of Campaign Finance Reform (Princeton). Washington Editor Michael W. Lynch spoke with Smith in April, just as the Senate passed the McCain-Feingold campaign finance reform bill. McCain-Feingold, the most expansive campaign finance legislation in years, seeks to outlaw so-called soft money contributions to political parties, restrict corporations and unions from running issue ads, regulate negative campaign advertisements by candidates, and restrict issue advertising in the last 60 days of an election cycle. A similar bill, which has passed the House twice in previous sessions, is expected to hit the House floor again this summer.

REASON: You've been at the FEC for about a year now. Do you like the job?

Bradley A. Smith: I do. I do enjoy the job.

REASON: During your confirmation process, critics charged you were unfit for the job. They said, How could you enforce a law you didn't believe in? Some are still saying that. How do you respond?

Smith: I get tired of hearing it. People always say that in an accusatory manner. It's a very pernicious idea. It's the same charge that has been used against Atty. Gen. John Ashcroft and Secretary of Energy Spencer Abraham. It's the argument that the law can only be enforced by zealots. It's pernicious because it suggests that in fact there is no such thing as a rule of law and we can never trust people in power to restrain themselves in any way. It cuts against the very idea that makes our country work. It makes it very hard to improve governing systems if people think it is the norm for people in power to do whatever they want.

REASON: To clarify: Even if you think the contribution limits are unconstitutional, you are going to enforce them because that's the way the law is both written and interpreted.

Smith: Right. I would add that I have also taken an oath to uphold the Constitution and I don't think the Supreme Court has a monopoly on the Constitution. I think at some point an official, even an appointed official, has the ability to say, "I'm just not going to do that." Maybe he needs to resign, but I don't think he needs to. He can say, "I'm not going to do that. I'm in this position. I'm entitled to be in this position, I'm not going to do that."

That said, I think you have to be very hesitant in doing that. It needs to be an extreme case. And the reason is because in our process, ultimately we take the Supreme Court as the last arbiter of the Constitution. If the Congress has decided a law is constitutional and they've passed it, the president has decided it's constitutional and he's signed it, and the Supreme Court has decided it's constitutional and they've upheld it, proclaiming a law unconstitutional is something an appointed bureaucrat would not want to take lightly, to say the least.

REASON: How have your views changed since you've been in office?

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?

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.

When they vote, politicians consider their personal ideology, what the party wants, and what their constituents want, among other things. They also consider things like what their spouse thinks and what their staffers think, and of course their staffers have views on issues. They think about what the press is going to say on the editorial pages, but also how the press will report it on the news pages. Virtually all the research indicates that these factors are more important than who gives them money. And common sense suggests to us that they would be. There are a great many things that go into decision making, and I just think there's very little evidence to suggest that money is particularly important or particularly pernicious.

REASON: McCain-Feingold bans soft money and tightens regulations on ads by independent groups. What effect will this have on campaigns?

Smith: I think it will be bad for all the reasons I've just said. Soft money is used more than other forms of contributions to fund challengers—that's because parties have a direct interest in challengers winning. Individual contributions go mostly to incumbents. Corporate and union PACs go mostly to incumbents. Soft money goes almost evenly to challengers. So banning soft money harms challengers.

McCain-Feingold also limits all issue ads that mention a candidate in the last 60 days before an election, a provision that was ruled unconstitutional 25 years ago. One effect is that controversial issues might get shifted to the last 60 days of legislative calendars, when candidates can't be criticized for their votes. It will also make campaigns longer, because people will now have to run those ads earlier in the election cycle. This will make campaigns more expensive. It will weaken political parties and strengthen interest groups. All of these things are bad.

Interestingly, Deborah Goldberg, from the Brennan Center for Justice, a think tank at New York University School of Law, essentially told National Review Online, "Hey, if McCain-Feingold screws up elections even more, great. It'll convince people we need to have public financing." That's the ultimate goal. We'll have McCain-Feingold II a day after this thing is finally signed into law, because we'll have to do something about PACs and everything else that goes on.

REASON: What's wrong with public financing?

Smith: Public financing has a number of problems. Let's start with the basic claim that it will be "fair," since all candidates start out with the same amount of money. Well, it's not fair if one candidate has the support of the only major daily newspaper in the district; that candidate has more than the others. Public financing also raises first-principle problems: People don't like the government taxing them and giving the money to someone who says everything they hate. Finally, public financing, which is more accurately called taxpayer financing, doesn't solve most of the problems that they complain about, unless you also include all the other limits on speech as well. So long as people are able to talk about an issue and lobby, you are not going to get the money out of politics.

REASON: You basically think we should have more money in campaigns, not less. How would increasing the money help the political process?

Smith: Money gives outsiders a way to break into the system. Steve Forbes and Ross Perot shook up the system as much as anything has over recent years. They were able to do it because they themselves were the candidates and could spend the money necessary to put issues, such as debt reduction and the flat tax, on the map.

This also helps less-well-funded people. Ross Perot and Steve Forbes both spoke for millions of Americans who really weren't having anyone champion those causes. Historically it's people who are the real outsiders, who are poor, that need those kind of champions to come along for them. People like you and me, we are upper-middle-class and already have access to the press. We are not rich, but we don't benefit that much from a rich guy coming in because we already have ways to influence the political process. But it's the average Joe out there who needs exactly that kind of force to come into politics and speak for them. Sometimes that's a labor union, which are being restricted by McCain-Feingold. Sometimes it's an issue organization, like National Right to Life, which is being restricted. And sometimes it's just the wealthy eccentric millionaire, who is restricted if he is not willing to be the candidate.

REASON: When it comes to pushing candidates, what role have big donors played in the past?

Smith: Candidates used to be much freer from the obligation to raise funds. Before Ronald Reagan started to run for public office, guys like Henry Salvatori and some other wealthy Californians basically told him, "We'd like you to run for office—we'll take care of the money so you don't have to worry about it." Ronald Reagan never had to sell his soul for money or anything else. In 1967, Eugene McCarthy declared his candidacy for the Democratic presidential nomination just a couple of months before the New Hampshire primary. The Mott family and Wall Street banker Jack Dreyfus Jr. went in and poured lots of money into that campaign. A candidate could never get that kind of campaign off the ground today. The candidates were free of the duties of fund? raising. Now candidates have to spend all their time fund raising because they have to raise money in $1,000 to $5,000 increments. The 1974 reform law has made them much more dependent on fund raising.

There's another kind of outsider campaign we should remember, too—the type Jim Buckley ran for the U.S. Senate in 1970 as the Conservative Party candidate. He was able to win in large part because of true grassroots support that was not stifled by regulation. People all around the state would just start reproducing Buckley for Senate campaign literature, which would now count as a contribution to the campaign. People held coffees in their houses and passed the hat. If you do that today, you run afoul of cash contribution limits, anonymous contribution limits, and reporting rules. The laws restrict the ability of the outsider campaign to raise money. They also make insider politicians themselves spend more time fund raising.

REASON: Explain why you think money is speech.

Smith: Let's suppose that the government—and I do hate to give it ideas—says that there are all these church buildings that are sitting around empty during the week and taking up prime space. So it says, "You can practice all the religion you want, but you can't build any more churches." Or it says, "We'll limit how much you can give to your church to $25,000." I think everybody would immediately say that has First Amendment implications. Of course we would.

To drive a little closer to home: Let's say Republicans don't like the way The New York Times has been attacking them. "We won't limit their speech," the good legislators declare, "but we will say you can't spend more than $1,000 a day or $25,000 a year to publish." Of course that would limit the paper's speech.

I think in a basic sense, everybody recognizes that spending money is intimately a part of the speech process and that if you limit expenditure, you limit speech. That is what the Supreme Court recognized in Buckley. The only question, then, is whether there's a compelling enough government interest to allow you to regulate speech in this circumstance. When you think about it seriously, there's no one who questions that if you limit spending you limit speech and that the First Amendment is involved.

REASON: What's the ideal system of campaign finance regulation?

Smith: The ideal system is the system we had that elected Abraham Lincoln and Grover Cleveland, which is no regulation. Or the system that elected both Roosevelts, Truman, Eisenhower, and Kennedy, which is a system that had virtually no regulation. The First Amendment is there precisely to keep government out of the business of deciding who is engaged in "real" issue advocacy and who is engaged in "sham" issue advocacy, and to keep government from deciding who has too much influence and who has too little influence. That's exactly why we have a First Amendment, so bureaucrats like myself are not making those decisions.