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Saturday, June 1, 2002

Unfree Speech: The Folly of Campaign Finance Reform by Bradley A. Smith

The Last Word in Defense of Free Speech in Political Campaigns

Princeton University Press • 2001 • 304 pages • $26.95

Reviewed by John Samples

Responding to Watergate, Congress a generation ago passed draconian restrictions on campaign spending and fundraising. The Supreme Court eventually struck down the spending limits, but affirmed contribution ceilings and the legality of the new agency empowered to oversee the regulatory regime, the Federal Election Commission (FEC). Over time, inflation has made the contribution limits more restrictive, but campaign spending has increased apace.

In the mid-1990s Senator John McCain took up the cause of legislating new restrictions on campaign finance emphasizing the issue during his failed presidential effort in 2000. That cause was reinvigorated, thanks to the eagerness of many to see the Enron debacle as proof of the corrupting influence of campaign contributions. With the recently signed reform bill heading to the U.S. Supreme Court, Smith’s book could not be more timely.

The cause of campaign finance “reform” attracts a strange mélange of civic puritans, who decry corruption, and traditional egalitarians, who attack the “undue influence” of the affluent. Among the puritans should be counted McCain himself, who is nothing if not self-righteous, and the numerous Washington interest groups like Common Cause and the Naderite factions, all of which lobby to rid money from politics while taking millions from leftist foundations like the Joyce Foundation and the Pew Memorial Trust.

Like earlier puritans, McCain and his allies prefer religious zeal to public reason; they rarely support their claim that campaign donations corrupt American government. Smith nonetheless examines their assertion with scholarly care. Political scientists have extensively studied the links between campaign giving and congressional voting. As Smith, a law professor at Capital University currently serving as an FEC commissioner, notes, they have found little if any connection between the two, an important finding since the only constitutionally acceptable rationale for restricting contributions would be preventing corruption or the appearance of corruption. In fact, academic studies say party affiliation, ideology, and constituent preference are more important factors affecting congressional votes.

The most intellectually serious—and most dangerous—proponents of campaign finance restrictions are the traditional egalitarians, who profess their cause in our most eminent law schools. Some law professors argue that we must restrict the political speech of some to enhance public debates and thereby realize “First Amendment values.” Others say the Fourteenth Amendment requires government action to promote a de facto equality of influence in politics.

Smith invokes the clear meaning of the Constitution against the “First Amendment values” argument. The framers intended to exclude government regulation of the marketplace of ideas. They defined political liberty by the absence of governmental intervention and not as a goal to be achieved through positive state actions. They knew that politicians could not be trusted to regulate the electoral process. Once we abandon the clear language that Congress “shall make no law . . . prohibiting freedom of speech,” Smith persuasively argues we are only a step from “suppression pure and simple.”

Other academics argue that government must substitute public for private financing of elections to attain “equal protection under the law.” Yet, as Smith notes, the Fourteenth Amendment protects citizens against governmental discrimination. It places no positive obligations on government to fund political campaigns. The Constitution guarantees equality before the law, not equal influence over elections or policymaking. Smith’s treatment of the Supreme Court cases in this regard is comprehensive and masterful.

He touches on many other issues in this work. Fully at home in constitutional law, he crosses disciplinary boundaries without fear, evincing an adventuring spirit that is needed on this topic. He has clearly written a book that will stand as the last word in defense of free speech in political campaigns.

I might mention in closing two great ironies about this work. John McCain appears late in the book. McCain’s obsession with campaign finance has always been a bit of a mystery, a puzzle possibly tied to his bad conscience about the Keating Five Affair. (Readers may recall that five senators, including McCain, were accused for doing favors for S&L figure Charles Keating in return for campaign contributions.) Smith examines the evidence and suggests McCain did nothing wrong or improper—Smith is more than fair toward a public figure who is rarely fair to others.

The other irony: Smith now serves on the FEC. When he was nominated to that position, the “reform” lobby attacked him along the low road, comparing him to David Duke, the Unabomber, and Slobodan Milosevic. The resistance held up his nomination for over a year, during which he finished the work under review. Rarely has sweet revenge and a profound public service been so winningly combined. Every friend of political liberty should read Unfree Speech.

John Samples is director of the Cato Institute’s Center for Representative Government.

  • Bradley A. Smith is the Josiah H. Blackmore II/Shirley M. Nault Professor of Law at Capital University Law School in Columbus, Ohio, and the Founder and Chairman of the Center for Competitive Politics in Alexandria, Virginia.