Lucky Princeton University Press. Its Unfree Speech hit the streets just a few days before the Senate took up and approved a campaign finance law that was the handiwork of John McCain, R-Ariz., and Russell Feingold, D-Wis. And the battle was far from over, even before the partisan flip in the Senate and the new political dynamics on Capitol Hill that are still unfolding.
Also lucky for the publisher that the author, Federal Election Commissioner Bradley A. Smith, is such a clever and entertaining (if maddeningly provocative) writer; his book is a reasonably lively read—no mean feat for an expedition into the murky depths of political money in America.
But Smith's overly grand solution—just throw out all the rules that apply to the giving and receiving of campaign money—is too facile by half. Smith correctly points out that regulating political money presents constitutional challenges. From there, however, the author leaps to the conclusion that limits should not even be attempted. He rightly accuses those who favor revising—and tightening—the rules of overstating their case. Yet in his book, Smith commits the same error, at the opposite extreme.
Many of the author's foes will, of course, dismiss his libertarian critique out of hand. But Smith makes a convincing case that drastic restrictions on "issue-advocacy" messages by interest groups violate the First Amendment. Smith, too, takes justifiable aim at some of his opponents' silliest extremes. These include the notion that contribution limits should be lowered dramatically, and that campaigns can somehow be stripped of all financial inequity between candidates—an even more implausible idea.
But the author ultimately fails to make a credible case for deregulating the political money system. Not content to defend issue advocacy, Smith goes much further and declares that the Supreme Court erred in even allowing limits on contributions to political candidates. Smith's entire argument for deregulation rests on his assertion that corruption is a nonissue. Yet he offers little plausible evidence that the threat of wrongdoing is, in fact, so insignificant.
The motivation for many advocates of change is the explosion of "soft," or unregulated, money. In his discussion of soft-money contributions—often-staggering amounts of dollars given to the political parties by corporations and unions—his assumptions are, once again, boggling. "At first blush, it can be difficult to see what the soft-money fuss is about," Smith writes. "In the 1996 election cycle, for example, soft money constituted less than 10 percent of spending on congressional races, and about 13 percent of total spending on all federal races." But soft money dominated many a federal race last year. In Delaware, to pick one example, Democratic party committees spent nearly $4 million in soft money to help elect Democrat Thomas R. Carper to the Senate—roughly twice the $2.1 million in "hard money" that Carper spent on the race.
Smith defends soft money on the grounds that the Supreme Court, in a landmark ruling involving Colorado Republican Party expenditures, found that "the independent expression of a political party's views is 'core' First Amendment activity no less than is the independent expression of individuals, candidates, or other political committees." But here again, the author is comparing apples and oranges. The ruling addresses only hard money raised and spent by the political parties, and that money is subject to contribution limits. The Supreme Court decision did not deal with the soft money that some analysts say has overrun the system.
Vast patches of Smith's book—combative though they may be—seem downright dated. He devotes page after page to debunking proposals that are no longer on the table, including voluntary contribution limits and a ban on political action committees. If anything, most members of Congress pressing for revised rules regard regulated PAC contributions in a favorable light, at least compared with unregulated soft money.
Smith also paints an overstated, nightmarish picture of draconian federal election laws. His book is replete with breathless anecdotes of law-abiding citizens and grassroots groups being hounded by the Federal Election Commission. Yet not a single one of these citizens was actually prosecuted for election-law violations. In each case, the courts ultimately intervened. This suggests, some might argue, that the system works—that even if the government sometimes overreaches, the aggrieved can rely on the courts to protect political speech.
Smith's dramatic assertion that "we are, today, in the most heavily regulated era of political speech in American history" is a clanger. If anything, elections now appear to operate largely in a world without rules—thanks in part to lax or nonexistent enforcement by Smith's commission.
It would be nice if retooling the political money system were as simple as the author makes it out to be. In fact, the challenge for lawmakers will be to strike a delicate balance between protecting the First Amendment while furthering the government's constitutional interest in fighting corruption. The campaign finance field is ripe for a book-length analysis that helps carve out that middle ground. Such a task, however, will have to fall to another writer.