Let them spend millions

Campaign finance reform stifles grass-roots organizing and harms American politics, says a member of the Federal Election Commission.

Published March 30, 2001 10:38PM (EST)

Bradley Smith doesn't just oppose the McCain-Feingold campaign finance reform; he's against almost every kind of campaign finance regulation. Smith, a law professor at Capital University Law School in Columbus, Ohio, who is on leave from academia to serve a six-year term on the Federal Election Commission, explains in his new book, "Unfree Speech: The Folly of Campaign Finance Reform," that he believes that political candidates should be able to spend what they want.

When then President Clinton nominated Smith for one of six spots on the FEC in February 2000, advocates of campaign finance reform and the nation's editorial writers cried foul. Many claimed that Clinton had betrayed his own statements advocating campaign finance reform by appointing Smith, who had made his case against campaign finance regulation in several law review articles. (It was widely believed that the president had traded the nomination for the promise that Republican lawmakers, particularly Sen. Trent Lott, R-Miss., would unblock 16 of his judicial nominations.) Before Smith's appointment was confirmed in May, Clinton criticized his own nominee's views on campaign finance regulation to the press.

If President Bush signs the McCain-Feingold bill into law and soft-money contributions are banned, Smith, as a member of the FEC, will have to enforce laws that he believes threaten constitutionally protected speech. Smith spoke to Salon from his home in Fredericksburg, Va.

How do you think campaign finance regulation has messed with politics so far?

The contribution limits were never adjusted for inflation. That requires candidates to spend more and more time trying to raise money. It makes each contributor more important, which, if anything, makes it more likely that a contributor might have some influence. If you didn't have the limits you could turn somebody down. Instead, now you're less willing to offend anybody because you have to keep as many contributors as you can. It makes campaigns more negative and less issue-oriented. A politician wants to appeal to as wide a group as he can, so he takes mushy, soft, in-the-middle positions and then vehemently attacks his opponent. If he comes up with a positive, strong agenda -- particularly if it's something a little different like privatizing Social Security or proposing a sharp new regulation of the environment -- it makes people edgy and the candidate won't be able to get the broad base of fundraisers at the beginning.

Do you believe that campaign finance regulation encourages the "millionaire candidate"?

Of course. Now, while everybody else is under contribution limits -- which haven't been raised in the 27 years since the bill was passed -- it becomes a big advantage to be a wealthy, self-funded candidate. You don't have to spend your time going around looking for small donations. It's always been an advantage to have big money people behind you or to have big-money yourself.

But historically a lot of the most radical campaigns tend to be financed by a relatively small number of people who come in and put the big money behind it. For example, when Eugene McCarthy ran in 1968, he didn't even declare his candidacy until November or December of 1967, a couple of months before the New Hampshire primary. A handful of people -- Stewart Mott, the General Motors heir, and the Dreyfus family of Wall Street -- came in with big six-figure contributions that got his campaign up and running in almost no time. When Ronald Reagan first entered into politics, some big-money guys out in California told him they'd like him to run for office and that they'd take care of the money. That's what got his career off and running.

Nowadays, you can't run that kind of campaign unless you're the self-funded candidate. They can't pay for somebody else to run, so they run themselves. That's why we get more self-funded candidates like [New Jersey Sen.] Jon Corzine.

How were campaigns run before campaign finance regulation? In your book, you say that you think regulation is killing off grass-roots politics.

Yes. The argument is always that people feel distanced and they can't compete with the money. There's some truth to that. But if you look at it closer, part of the reason for that is that the old grass-roots ways of organizing cannot be done. For example, in the old days ...

And by "the old days" you mean ...?

In 1969. Then, if a bright young person wanted to run for Congress, somebody would throw a party at their home with some fairly well-heeled folks and the candidate would get up and say a few words, and then they'd pass the hat around and see what they could do. You can't do that anymore. You can't take the anonymous contributions. You can't take the cash contributions.

James Buckley, the plaintiff in Buckley vs. Valeo, spoke about how when he ran for the Senate in 1970, they'd go into a town in upstate New York and find a Buckley for Senate headquarters that they did not know existed. Local activists had gone out and set up their own thing, printed out their own literature and gone to work on their own. Now, you'd be running the risk of violating the various campaign financing laws and you'd have to report to the FEC if you spent $250 or more. So people don't want to participate. This has been made worse by the fact that campaign treasurers are personally liable for violations of the act. I tell people flat out, "If anyone who's running for office asks you to be their treasurer, say no."

This fall, a friend of mine at a law school called me up and said, "Hey, some of the students have organized Law Students for Bush-Cheney. I'm going to be their advisor." And I said, "That's great, but don't spend $250 or you'll have to start reporting to the FEC." I mean, what's $250? That's pizza for your first meeting, a small ad in the school paper and a banner that you hang behind you at the first meeting. You're done. At least, that is, if you don't want to hire a lawyer and an accountant.

Instead, what climate has taken the place of grass-roots organizing?

We're more and more turning politics over to the lobbyists, the consultants and the lawyers who know how the system works and who can comply with it. The campaigns themselves don't want volunteers with any initiative. They like having volunteers who will come in and do exactly what they're told -- stuff envelopes or whatever -- but they don't want anyone who's out there using their own initiative to get things going, because that person is likely to violate the laws, which will get not only the person in trouble but the campaign in trouble as well.

But you don't think money buys elections?

Let's put it this way: Money certainly helps. You'd rather have more than less and you'd probably rather have more than you already have. But the key dynamic in an election is that challengers spend enough money. Once we find that a candidate spends enough, it's a threshold. In a typical U.S. House district, the threshold is probably about $750,000. If you spend that much, it doesn't really matter how much your opponent spends; it's probably going to be a pretty competitive race, and you have a pretty good chance of winning.

But to say that money buys elections is something of an overstatement. We can look through the anecdotal evidence of lots and lots of people who spend lots of money and lose -- the Michael Huffingtons and the Al Chechys. You can also find correlations showing that the candidate who spends the most wins 95 to 98 percent of the time. That's true, but that's basically the same rate at which incumbents win. Incumbents are usually spending more money -- they have built-in fundraising advantages that have been made worse by the regulation. That really reflects an incumbent advantage more than anything else, because again we find that when challengers spend enough money they can be pretty competitive. Money is a tool in an election, but it's not the end-all, be-all issue.

Yet money is the heart of the issue with campaign finance reform.

Our focus on money sometimes creates more of a problem. About two years ago, I was asked to do an hour on public radio. They were saying how awful it was that George Bush was spending all this money and scaring out all these challengers before the race had even begun, and that [Dan] Quayle and [Lamar] Alexander and all these guys were dropping off and that they never got to talk about their issues.

I remember saying, "If you really believed that, why do you have me on for an hour to talk about Bush raising money? Why don't you bring on Quayle and have him talk about the issues?" Every story that's done on who raised money is a story that could have been talking about issues in the campaign and could have been used to inform voters of what candidates really believe.

You actually think that more money, not less, should be involved -- that all restrictions should be banned?

I would let people spend what they want. Whether that comes to more or less, I don't really care. We in America don't spend a lot of money, whether you compare it to other countries or figure it out on a voter basis or figure it as a percentage of our economy or compare it to other types of advertising. Money breaks up the system.

Big business spends 10 times on lobbying what it spends on campaign contributions. That's where the real source of its influence lies. That's why groups like the Council for Economic Development, which mainly consists of Fortune 100 companies, favor restrictions on giving. They know they have permanent lobbyists in Washington and the smaller businesses don't, and they know that they're going to come out ahead.

We see the way a Ross Perot or a Steve Forbes could come in, because of that self-funded candidate loophole, and force new issues onto the stage. The more players you get in the system, the more likely you are to have a wide variety of opinions represented. Rather, we're reducing the number of people with influence to people like me, a professor with a job that allows me time to write, speak and file amici briefs, and people like you, a reporter who picks what you're going to write on, and people whom I call full-time busybodies -- the folks at Common Cause and Public Citizen -- and all the other professional lobbyists.

Still, doesn't money buy unfair access to politics?

If you've given money, you're more likely to get access, though I think it's overstated. But let's assume that it's true: What does that mean? Congressmen are going to allocate their time in some way. They have to listen to all kinds of other people -- their family, their friends, their staff. The single group with whom they spend most of their time is other government employees. The largest occupational group that testifies at congressional hearings is government employees. At some point, I feel like anything that forces them to meet with other kinds of people might be a good thing.

Do you think that political equality is elusive?

It's elusive if you want to define it as meaning everybody has equal influence. I'm not sure what it would mean if we all had equal influence. If we all had equal influence, I think that that would mean that none of us had any influence. If we all had equal influence, why would anybody bother to be involved in politics? People get interested in issues precisely so that they can have more or less influence.

The voting booth is where everybody is equal. Everybody casts one vote and each vote has the same weight. Each of us, in going into the voting booth, has the same right to make up our mind to consider all of the information that we've heard that's been paid for with dollars people have contributed. That's what true political equality is.

What aspects of campaign finance reform do you think are threatening on constitutional grounds?

One doesn't like to make slippery slope arguments, but if the reformers really want to accomplish what they say they do, they'll go all the way down the slippery slope. Clearly, speech is involved. How else are you going to communicate? How are you going to speak if you don't spend money? If you want to go down and chant outside the IRS office on April 15, you have to buy a bullhorn and you have to pay your way downtown. Obviously, if we set the spending limits low enough, it's going to cramp your ability to even do that.

What if we limited how much money the New York Times could spend to publish? If it can spend $1,000 a day and $25,000 a year -- those are the limits now on people giving "hard money" to political campaigns -- very quickly the New York Times would be not nonexistent, but a very, very thin, sporadically issued newspaper.

How does the McCain-Feingold bill in particular threaten speech and advance us down this slippery slope?

McCain-Feingold finds that limiting contributions to candidates is not enough, so we've got to limit outside groups too.

From doing what?

The restriction on issue ads [ads that attack a candidate's position or record on a particular issue, but that don't urge viewers to vote for the candidate's opponent] is a very dangerous provision. It's based on the theory that the government can separate real ads from sham ads. Essentially, it severely restricts the ability of citizen groups to criticize candidates during the 60 days before an election. That's part of the reason it gets a lot of its support. Sen. Thad Cochran [R-Miss.], whose move seemed to change the whole debate, says over and over, "We're just defenseless against these attacks." The answer is, So what? Of course people have the right to criticize your record. It's true that a lot of political ads are unfair, but that's a fact of American political life.

What was the original Supreme Court ruling on speech and campaign finance regulation?

In Buckley vs. Valeo (1976), the court held that all speech is protected by the First Amendment. Where the threat of corruption is greatest -- in direct contributions to a candidate -- the ruling allows a limited amount of regulation. But the court says you can't regulate people from talking about issues or limit any speech "relative" to a candidate; people are going to talk about politicians. The court says you have to have a clear, bright line so people know when their speech is regulated and when it's not. The idea of this 60-day test is that it will be the bright line: If you talk about a candidate in the 60 days before an election, it's illegal. But it's a bright line that's nonsensical.


How can it possibly be that your speech rights decline as we get close to an election?

How do you think these limits would actually affect the election?

If you put a 60-day limit on what's going to happen, the sham issue ads will be run in the 61st to the 90th days before the election. And Congress will begin to move certain bills, particularly controversial bills, into the last 60 days of the calendar. They'll handle things in September. They already do it. If you put this law in, sham issue ads will go outside the period and a lot of legislation will move during the blackout period.

What about campaign finance reform in light of the Marc Rich scandal?

Nothing in McCain-Feingold, or indeed in any campaign reform proposal I have seen, would stop the future Marc Richs from giving money to the president's library fund or from hiring a very talented and connected lawyer like Jack Quinn. Nothing would stop him, if it really came down to it -- other than laws that are already on the books -- from paying a bribe. The American people knew in 1992 that Bill Clinton probably had some questionable ethical standards. Character does matter.

So you don't think the Marc Rich scandal has anything to do with the general mind-set about money in politics.

It has something to do with the general mind-set. The public doesn't like the idea that he was pardoned because he was able to give large sums of money. But, again, most of the reform proposals wouldn't stop that -- many of the Rich contributions were to the library fund. And also, we do have to focus on the politicians themselves. When we say that the system is corrupt, what we're really doing is giving a pass to all the corrupt politicians. The fact is that most politicians aren't corrupt. I know a lot of these guys and I think for the most part that they believe in what they're doing.

If the President signs McCain-Feingold into law, you'll have to enforce laws you strongly disagree with.

It's a very dangerous argument to say I can't uphold a law that I disagree with. That would say that laws can be enforced only by zealots. Our system works on individuals enforcing the law even when they disagree with it. That goes from the president to court intake clerks.

With this type of law, there will be more protection for Internet pornography, flag burning and beer commercials than there will be for core political speech. It's not that I personally favor regulating any of those other things; I just think it's a pretty bizarre situation when you regulate political speech more than those things.

By Suzy Hansen

Suzy Hansen, a former editor at Salon, is an editor at the New York Observer.

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