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Unfree Speech: The Folly of Campaign Finance Reform

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Overview

At a time when campaign finance reform is widely viewed as synonymous with cleaning up Washington and promoting political equality, Bradley Smith, a nationally recognized expert on campaign finance reform, argues that all restriction on campaign giving should be eliminated. In Unfree Speech, he presents a bold, convincing argument for the repeal of laws that regulate political spending and contributions, contending that they violate the right to free speech and ultimately diminish citizens' power.

Smith demonstrates that these laws, which often force ordinary people making modest contributions of cash or labor to register with the Federal Election Commission or various state agencies, fail to accomplish their stated objectives. In fact, they have worked to entrench incumbents in office, deaden campaign discourse, burden grassroots political activity with needless regulation, and distance Americans from an increasingly professional, detached political class. Rather than attempting to plug "loopholes" in campaign finance law or instituting taxpayer-financed campaigns, Smith proposes a return to core First Amendment values of free speech and an unfettered right to engage in political activity.

Smith finds that campaign contributions have little corrupting effect on the legislature and shows that an unrestrained system of contributions and spending actually enhances equality. More money, not less, is needed in the political system, Smith concludes. Unfree Speech draws upon constitutional law and historical research to explain why campaign finance regulation is doomed and to illustrate the potentially drastic costs of efforts to make it succeed. Whatever one thinks about the impact of money on electoral politics, no one should take a final stand without reading Smith's controversial and important arguments.

Editorial Reviews

Law professor and Federal Election Commission member Smith does not beat around the bush: "Almost everything the American people know, or think they know, about campaign finance reform is wrong," and he proceeds to say why in a work that is both enlightening and entertaining. The popular perception of campaign financing is that of a corrupt system in which a few wealthy contributors have undue influence upon the decisions of lawmakers. In fact, Smith goes to great lengths to show, the system works pretty well. Comparatively, he says, not that much is really spent on campaigns Americans spend more on both potato chips and Barbie dolls and there is little if any proof that the system does in fact corrupt or privilege one group's interests over those of others. But reformers must reform, and in doing so, Smith says, they have made matters worse. Reform has tended to favor incumbents and wealthy candidates, to discourage grassroots organizing, to turn campaign discussion into a mush of platitudes. And with every reform failure the reformers must add another reform, until campaign finance regulation becomes a "mosh pit" of confusion and cross-purposes. This might all be funny were it not, Smith contends, that campaign finance reform is simply unconstitutional he argues that it threatens the freedom of speech guaranteed by the First Amendment. To say the least, there are many who will disagree with Smith's findings and conclusions. But this is a marvelous contrarian view: moderate in tone, elegant in language, clever in argument. (Mar.) Forecast: Could a book be more timely? If Princeton promotes it vigorously, it should generate some controversy among pundits and sell honorably well. Copyright 2001 Cahners Business Information.

Author Information

Bio of Bradley A. Smith

No bio available for Bradley A. Smith.

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Additional Info

Imprint

Princeton University Press

Filesize

2.18 MB

Number of Pages

318

eBook ISBN

9781400824717

Excerpt from: Unfree Speech by Bradley A. Smith

Chapter 1


INTRODUCTION

On May 31, 1972, a two-page ad appeared in the New York Times that featured the headline "A Resolution to Impeach Richard Nixon as President of the United States." The ad, which cost a total of $17,850, was paid for by a group consisting of several lawyers, at least one law professor, a former United States senator, and a number of other citizens of modest prominence, calling themselves the National Committee for Impeachment. In addition to criticizing President Richard Nixon, the ad recognized an "honor roll" of several congressmen who had introduced a resolution that called for the president's impeachment. The United States Department of Justice moved swiftly, getting a federal district court to enjoin the National Committee for Impeachment and its officers from engaging in further political activity. The committee, argued the government, was violating the Federal Election Campaign Act of 1971 because its efforts had the potential to "affect" the 1972 presidential election, and the committee had not properly registered with the government to engage in such political activity.

United States v. National Committee for Impeachment was the first enforcement action ever brought under the Federal Election Campaign Act (FECA), which, as amended, remains our basic national campaign finance law. The case made plain the extent to which FECA was one of the most radical laws ever passed in the United States; for the first time in history, Congress had passed a law requiring citizens to register with the government in order to criticize its office holders.

The case also illustrates the inextricable link between political speech and political spending. For the government's hook in its effort to quiet the National Committee for Impeachment was not the committee's actual speech but its expenditure of money to advertise that speech. The government did not attempt to argue that the defendants had no right to speak out about impeachment or other subjects, or that the contents of the ad were libelous or defamatory. Rather, it argued that the Committee for Impeachment was barred by law from spending more than $1,000 to disseminate its views. But as the case shows, speech costs money. If the government can regulate or limit expenditures to fund speech, it can effectively regulate or limit the corresponding speech. Virtually any effort to communicate with a mass audience requires an expenditure of money, whether that expenditure goes to advertise in a newspaper or on television, rent a hall or pay for a permit for a public rally, publish a newsletter or handbills, or simply to purchase a soapbox and bullhorn. It was the expenditure of money--a quite modest amount, really--that made the speech of the National Committee for Impeachment potentially persuasive to voters, and that served as the foundation for the government's claimed authority to regulate that speech.

In the summer of 1976, Edward Cozzette and a handful of friends organized the Central Long Island Tax Reform Immediately Committee (CLITRIM). The group was unaffiliated with any political party or candidate. Cozzette and his friends contacted National Tax Reform Immediately, an unincorporated committee affiliated with the conservative John Birch Society, and obtained information on the voting record of their local congressman, Representative Jerome Ambro. They then spent $135 to print copies of a bulletin that included a photo of Representative Ambro and a list of twenty-four of his votes in congress. Each vote was identified as being "for lower taxes and less government" or "for higher taxes and more government." Twenty-one of the twenty-four votes fell into the latter category. The bulletin urged readers, "if your representative consistently votes for measures that increase taxes, let him know how you feel. And thank him when he votes for lower taxes and less government." CLITRIM members distributed copies of the bulletin at a commuter rail station, shopping centers, and at a public meeting at which Representative Ambro appeared.

On August 1, 1978, the Federal Election Commission (FEC) sued CLITRIM in federal court for violating the terms of the Federal Election Campaign Act by distributing Representative Ambro's voting record in the summer of 1976.1 Is this what Americans want in the polling data that seems to show overwhelming support for "campaign finance reform"? Is it right that a handful of Americans could be sued in court for spending $135 to publish and distribute truthful information about the voting record of a candidate for federal office? If not, what went wrong? Can it be avoided in the future?