Unfree Speech: The Folly of Campaign Finance Reform
by Bradley A. Smith
Princeton. 286 pp. $26.95
In April, the Senate approved the most comprehensive overhaul of federal campaign-finance law in the past quarter-century. The bill, co-sponsored by Republican John McCain of Arizona and Democrat Russell Feingold of Wisconsin, would ban so-called “soft money”—the currently unregulated contributions that corporations, unions, and individuals make to political parties—and restrict certain kinds of end-of-campaign advertising by unions, corporations, and interest groups like the National Abortion Rights Action League or the National Rifle Association. The Senate’s action ensures that campaign-finance reform will be a major theme this year in the House of Representatives, where similar legislation will soon be taken up. President Bush, yet to commit himself, will be forced to adopt a position if a bill is passed.
Bradley A. Smith, a former law professor now serving on the Federal Election Commission (FEC), could thus not have picked a better time for this attempt to expose, as his subtitle puts it, “the folly of campaign-finance reform.” Smith opposes the McCain-Feingold bill, and indeed argues for repealing current regulations altogether. The one, simple reform he does favor is to liberate the “unfree” speech that results from those regulations and thereby return us “to the system of campaign-finance ‘regulation’ envisioned by the framers of the Constitution and enshrined in the First Amendment.”
Unfree Speech does not start with the present moment, however, but with a review of history. The first federal reform of campaign finance was the Tillman Act of 1907, which banned contributions by federally chartered banks and corporations. This law, Smith writes, “had little practical effect other than to re-channel the way in which contributions were made,” by (for example) allowing corporations to donate goods and services in lieu of cash. Over the years, additional reforms were passed whose ineffectuality, in Smith’s rendering, unfortunately failed to dull enthusiasm for still further reforms.
It is beyond dispute that the history of campaign-finance reform is replete with unintended consequences, of which Smith recounts a number. For example, the 1943 Smith-Connally act, which prohibited labor unions from contributing directly to campaigns for the duration of the war, actually increased their involvement in politics. To the chagrin of the bill’s Republican sponsors, unions created separate committees that collected money from members through automatic payroll check-offs and then donated it to their chosen—i.e., Democratic—candidates. This practice, which for the many union members who are not of the liberal persuasion amounts to a novel form of taxation without representation, is still with us today.
But this brings us to more recent history. In 1971, Congress passed the Federal Elections Campaign Act and then, responding to abuses, amended it significantly in 1974 by setting limits on both “hard-money” contributions—that is, contributions to candidates themselves—and spending. The new law was immediately challenged in the courts. In a landmark 1976 case, Buckley v. Valeo, the Supreme Court sustained the limits on contributions but struck down those on spending. Two years later, the FEC made it possible to skirt the hard-money restrictions by sanctioning soft-money contributions. The 1974 amendments (as modified in Buckley) and the FEC’s soft-money rules constitute, as Smith observes, “the basic framework for federal campaign-finance laws” today and thus the object of the current reform effort led by John McCain.
Unfree Speech provides useful information on the subjects in today’s headlines. Consider “issue advocacy,” which is “political discourse that does not expressly support or oppose a candidate but that has the potential to influence voters’ thinking about a candidate.” Issue ads were not much in evidence before the mid-1990’s. But, in another unforeseen development, candidates short on funds because of the limits on contributions began turning to their parties—and their unregulated soft-money accounts—for help, and that help has often been provided in the form of ads. Nor are the parties the only ones resorting to this means of electioneering. Groups seeking to find ways to participate in the political process have also bought issue ads in which a candidate’s records or views are highlighted, favorably or disparagingly.
Turning to the reformers themselves, Smith takes apart their leading arguments one by one. Among the most prominent is the idea that campaign spending is too high. As Smith shows, however, total spending for all local, state, and federal elections last year came to no more than $15 per eligible voter, hardly an extravagant amount. More to the point, there is no objective way to measure how much would be too much.
Another and more basic reason adduced by reformers is that contributions corrupt the legislative process. To this, Smith offers the rejoinder that traditional corruption, which is to say bribery, is prohibited already, while the sort of corruption the reformers object to usually boils down to the correlation they see between contributions and a candidate’s voting behavior once elected. Showing such a correlation would of course be necessary to prove corruption, but by itself it does not amount to corruption. In any case, Smith cites overwhelming evidence that, as compared with such factors as party agenda, personal ideology, and the desires of constituents, campaign contributions play a relatively small role in floor voting.
In his discussion of constitutional issues, which is the best part of the book, Smith unsurprisingly disagrees with the Supreme Court’s conclusion in Buckley that preventing corruption is a sufficiently compelling reason—the only one the Justices could come up with—to uphold limits on contributions. The Court, Smith writes, was too deferential to Congress. Since, today, “the claims of corruption remain . . . little more than conjecture,” and thus not enough to justify an abridgement of the First Amendment, it would be appropriate for the Court to overrule its judgment.
That the Court hardly seems ready to move in Smith’s direction is something he well recognizes. In the 2000 case of Nixon v. Shrink Missouri Government PAC, it sustained a Missouri law limiting contributions even though the only “evidence” of corruption took the form of unsupported allegations by state lawmakers. In the Court’s view, the mere fact that such harms might be plausible justified the limits. But the upshot of Shrink, as Smith observes, is that the Court provides less protection to political speech—the very heart of the First Amendment’s concern—than to other forms of speech, like commercial advertising.
Whether it will provide even less protection is a question raised by McCain-Feingold. If the bill becomes law, First Amendment challenges will most assuredly be brought Anticipating the issues in litigation, Smith cites the Supreme Court’s holding that political parties have the same rights to engage in political advocacy as do other groups; if soft money is in fact denied by Congress, and if the Court sustains the prohibition, the parties will be inhibited in the exercise of those rights.
Similarly with the right of independent groups to make unlimited expenditures, which McCain-Feingold would restrict by banning ads within 60 days of a general election or 30 days of a primary. If the Court upholds this restriction, it would have, Smith argues, “the bizarre effect of granting political speech less protection at the time of political campaigns—the exact moment that people are most focused on, and most interested in discussing, political issues.”
Though unfortunately marred by a number of typographical errors, Unfree Speech sounds many important themes, of which one of the most striking is that the effort to limit the influence of money in politics inevitably enhances the role of non-monetary elites, including the news media (where many of the most fervent enthusiasts for reform happen to reside). Above all, though, Unfree Speech is a timely reminder of the pertinence of the First Amendment and of “that tricky little phrase,” as Smith puts it, “that begins, ‘Congress shall make no law.’ ” Soon enough we will see whether Congress is indeed going to make a law that will infringe on First Amendment liberties.