Manual Unfree Speech: The Folly of Campaign Finance Reform

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  1. Bradley Smith | Hoover Institution
  2. Campaign Finance Reformer Doris Haddock, R.I.P.
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Broken link? Introduction Pt. Constitutional Matters Ch. Money and Speech Ch. Money and Corruption Ch. Money and Equality more Money and Equality Pt.

Bradley Smith | Hoover Institution

Maybe the commissioners are starting to get the message: Stop obstructing reform. Such funds are called hard money. But it left open, and will have to address, the much wider use of soft money for ads that purport to be only about issues such as healthcare reform and for partisan voter mobilization.

It was a well-funded committee called Republicans for Clean Air that helped derail Sen. With conventional soft money gone, the s have become much more important. Would it matter if Smith had spent thousands of dollars to design and promote his web site? If so, why? And if Smith's speech is subject to regulation, as the FEC claims, then we find ourselves in the curious position of providing greater constitutional protection to internet pornography, which is protected from regulation by the First Amendment, than to internet political speech.

Can this be how the nation's founders intended the First Amendment to be applied? For nearly twenty years prior to , Steve Forbes had written an opinion column in each issue of the business magazine that bears his family name.

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Before that, the column had been written by Forbes's father, and before that, by Forbes's grandfather, all the way back to the founding of the magazine in the early part of the century. In , Forbes declared himself a candidate for the presidency of the United States. As a candidate, he continued to write his monthly column in Forbes magazine. He never discussed his candidacy, but he did discuss subjects such as abortion, taxes, term limits, the gold standard, and that most passionate of political issues, interleague baseball play.

As a candidate, the FEC argued, Forbes lost the right to speak to the public through his magazine columns, unless his campaign paid Forbes to publish the columns. In other words, as a candidate, Steve Forbes had fewer rights under the First Amendment than he did before declaring his candidacy.

Campaign Finance Reformer Doris Haddock, R.I.P.

Such a theory seems preposterous, for it is hard to imagine a time when one would more want or need to exercise First Amendment rights than when one is running for office. Thus it was not altogether surprising when, just two months after filing suit, a rather embarrassed FEC, with three new commissioners on board, dropped its enforcement action against Forbes, Inc.

Unfree Speech The Folly of Campaign Finance Reform1

Yet dropping the enforcement action raised questions as well. For it is clear that Forbes, Inc. Why should publishers have this power, but not candidates themselves? Why should a publishing corporation be able to devote substantial resources to supporting or opposing a candidate when a nonpublishing corporation cannot?

This publishing dilemma raises other questions, such as whether to regard Internet web pages as publications. If a web page is considered a publication, should Leo Smith's Internet activities be exempt from reporting requirements? Or is the difference that Leo Smith has less First Amendment protection because he doesn't operate his web site for profit?

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  6. Indeed, in many respects they barely scratch the surface of the intractable dilemmas that mark efforts to regulate campaign finance. None of the actions of any of these people posed any serious danger of political corruption, by any stretch of the imagination. It is true that the first three were all vindicated in the courts, that the FEC chose not to pursue Smith although Smith closed his web site and that the FEC dropped the Forbes case.

    Yet in each of the last several congresses laws have been drawn up, and in many cases nearly passed, that are far more restrictive of political speech than anything under which any of the above individuals were charged. If the polling data is accepted at face value, Americans approve of such restrictions on political speech and, in fact, would like to see more of it. In , thirty-eight U. The amendment also had considerable support in the House.

    Richard Gephardt, the minority leader in the House and a supporter of the amendment, went so far as to tell Time magazine, "What we have is two important values in direct conflict: freedom of speech and our desire for healthy campaigns in a healthy democracy. Are free speech and healthy campaigns incompatible? Is the idea that the government should not interfere with what and how much is said in political campaigns really "ludicrous"? Appearing on national television in , McBride stated, "at the same time there are efforts to regulate them, [you] have oil and gas companies, [you] have trial lawyers, [you] have all the major interests that have an outcome in the election and an outcome in policy being able to pour this money in It's corrupting.

    Consider the implications of McBride's statement. She is arguing, in essence, that those persons and interests that are affected by government policies and possibly subject to government regulation must give up their right to try to influence government policy.


    This is a far cry from "no taxation without representation. It is hard to believe that one of the highest-ranking members of the United States House of Representatives would state that free speech and healthy campaigns are in irreconcilable conflict, without the slightest public outcry in response. It is hard to imagine how more than one-third of the U. Senate could vote to repeal the protections given by the First Amendment to political speech, with no more public debate or press coverage than is given to a routine highway funding bill. But it is true, and it is more believable once we recognize that this is the end result of a long and determined campaign to cheapen some types of political speech.

    Today, in the pages of some of the nation's most prestigious law journals some of our most talented young legal scholars are arguing that the Constitution permits, or perhaps even requires, a ban on all partisan political speech, except to the extent authorized by a grant of government speech vouchers. If this seems like idle speculation from the ivory tower, it should be noted that what today are mainstream prescriptions for campaign finance "reform" were, just a few decades ago, considered equally radical, and that one such advocate, Edward Foley, formerly of the Ohio State University School of Law, was appointed Ohio state solicitor in by a conservative state attorney general.

    When statements such as those of Richard Gephardt and Ann McBride can be made by prominent persons in national news media and create no stir at all, something has gone wrong with the way in which we think about political campaigns. This book is an effort to explain what has gone wrong, both at a political level and in constitutional doctrine. This is a book about campaign finance, but unlike most such books, it is not full of breathless innuendo about alleged "corruption" in politics, nor is it replete with cocktail party factoids aimed at making it seem as though political spending is beyond all control.

    Rather, this book asks the reader to reconsider the entire intellectual framework around which most of the nation's campaign finance regulation has been built.