Vol. 11 No. 6 (June 2001) pp. 320-323.

UNFREE SPEECH: THE FOLLY OF CAMPAIGN FINANCE REFORM by Bradley A. Smith. Princeton, New Jersey: Princeton University Press, 2001. 286 pp. Cloth $26.95. ISBN: 0-691-07045-8.

Reviewed by David K. Ryden, Department of Political Science, Hope College.

At the time of this review, we are at the brink of the first major campaign finance overhaul in a quarter of a century. But before our duly elected representatives are allowed to cast their final votes for McCain- Feingold, they should be required to read Bradley Smith's searing critique of campaign finance reform. There is much to disagree with in Smith's polemic, both in substance and style. However, unlike most senators debating the reform or the press responsible for covering it, Smith penetrates the stale rhetoric to offer a serious assessment of reform's underlying presuppositions and likely consequences. For those interested in effective reform, this is an important counterweight to the current debate.

Upon reading this book, it is clear why President Clinton's appointment of this previously little-known law professor to the Federal Election Commission caused such a stir. It is somewhat unsettling to read such an unwavering anti-regulatory view of campaign financing from someone sitting on the chief election regulatory body. Smith overreaches. His is hardly an evenhanded treatment of campaign financing. He too easily dismisses legitimate complaints. And yet, the book lays bare the speciousness of most current justifications for reform.

Smith begins by asserting that, "virtually everything that the typical American knows ... about campaign finance reform is wrong" (p. 12). He ends by concluding that "campaign finance reform has been a folly ... distanc[ing] Americans from politics and politicians" and leading "to a decline in the public's trust in government" (p. 227). In between, Smith effectively guts the intellectual core of the reform arguments, leaving the reformers with much persuading to do.

After a brief but useful historical account of regulatory efforts, Smith opens his assault on the "faulty assumptions of campaign finance reform." Those include the rarely contested notions that we spend too much on campaigns, that money buys elections, and of course that campaign contributions corrupt the legislative process. He then proceeds to an explanation of how past reforms only "exacerbated ... the problems they were intended to solve, and created new problems along the way" (p. 65). This is a strong section of the book; the author moves beyond the "goo-goo" impulses that dominate the reform movement to a more rigorous consideration of the actual consequences likely to flow from reforms. For example, he argues that reform, far from opening up and democratizing the system, typically only entrenches the status quo (p. 66). One need only look to McCain-Feingold for supporting evidence; its outlawing of soft money contributions to political parties,

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combined with its subsidies for those running against wealthy self- funded candidates and the ban on certain outside ads within sixty days of an election, will further insulate already ensconced incumbents from serious challenge.

Smith contests, correctly I believe, the conventional perception of campaign finance reform as populist relief for ordinary citizens. McCain- Feingold does little to elevate or stimulate the input of average people. Arguably it shifts even greater influence and control to select elites (the press, incumbents) at the expense of other, well-heeled ones. Smith pointedly reminds us that no campaign finance legislation can be "content neutral," but is sure to benefit some identifiable interests and disadvantage others. Indeed, Congress is incapable of crafting neutral legislation, given its self-interest in the matter. This in itself should make us exceedingly wary of "reform".

Smith then lays out (in Chapters 6-8) the constitutional objections to reform. He is a First Amendment purist. He considers all spending and contribution limits to be constraints on the flow of political information and subject to the strictest legal scrutiny. Smith rejects as unconstitutional all reforms other than disclosure, arguing that they fail the requirement that they be narrowly tailored to the supposed problem, the corrupting influence of money (p. 135). Smith convincingly rebuts the two main constitutional pillars of reform, political equality and the cleansing of campaigns. He characterizes as "quixotic" those "efforts to purify politics or equalize influence through the campaign finance system" (p. 198). He has little faith that political equality can be achieved through campaign finance legislation. Although legislative efforts address money as a cause of political inequality, they ignore disparities in influence resulting from celebrity, media access and attention, organizational ability, good looks, time, and a host of other political assets.

Likewise, Smith reveals how vacuous are the charges of corruption. He duly notes that no credible empirical study has definitively established that campaign giving alters congressional voting. Moreover, why are candidates who are responsive to campaign donors more "corrupted" than those who are responsive to party, various special interests in the district, or any other influences on congressional behavior? Most fallacious is the assumption of the corrupting nature of "soft money." That term is now so casually and carelessly bandied about as morally tainted that most have forgotten what it is, namely payments to political parties. It stretches logic and political reality to portray parties as "corrupted" by such donations, or to assert that parties somehow "corrupt" their candidates by spending on their behalf. Implicit in such claims is a larger bias against party organizations and their central role in the electoral process. I consider the elevated role of parties in recent years, admittedly due in part to soft money, a good thing. Banning soft money will only weaken parties, diminish their constraining influence on interest group resources, and inevitably increase direct contact between candidates and large donors. (Indeed, Smith could have made this case much more vigorously; he only devotes several pages to soft money, even though it generates the most consternation among reformers.)

In the final chapters, Smith proffers his preferred system of regulation, which is to say, no system of regulation. He asserts that "there is a system, however, that can meet the criteria of a successful regulatory system-that is, one that is flexible and easy

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to administer; that provides adequate information to voters; that lowers barriers to political activity and fosters competitiveness; that combats alleged influence peddling and increases official accountability; and that promotes true equality ... the First Amendment" (p. 225). I found this conclusion unsatisfying. Taking refuge in the First Amendment as the only protection we need from our campaign financing woes, Smith exhibits a purity of ideological commitment that too frequently characterizes those of the libertarian strain and that, I believe, weakens his case. He has nary a good word for regulation. Even a relatively benign idea like free TV time suffers his wrath. The first endorsement of any campaign finance regulation comes at page 220 of 227 pages of text, when Smith grudgingly accepts the possibility of a full disclosure scheme. Even then, his support is so tepid as to leave one suspecting he would prefer the elimination even of disclosure rules. So intent on disassembling the other side's case, Smith never acknowledges that there might be some merit to the complaints. He makes no mention of the six- and seven-figure soft money donations, or that questionable ulterior motives might accompany such gifts.

Smith also stretches his credibility by his too frequent assertions that those to blame for such muddle-headed reforms are those aligned with liberal political causes, as if this should make any difference. For example, he strains to blame the exponential explosion in campaign spending on the growth of government itself. Smith's subtext-that big government, liberal ideas, and campaign finance regulation go hand in hand-ignores several realities. Many hard conservatives who would dismantle government in a flash are as extravagant in their campaign spending as are liberals, and just as eager to shape campaign finance reform to their purposes. Similarly right leaning populists in the Pat Buchanan mold who demonize liberals at every turn may still genuinely share their passion for campaign finance reform.

My complaints notwithstanding, this is a thoughtful and convincing contribution to the debate. It is quite accessible. Smith has consciously avoided the law review plague of incessant and unreadable footnotes, and has done an excellent job of writing in layman's terms. I am not sure Smith achieves his stated goal of "filling the gulf between the empirical research of political scientists and economists and the constitutional theories now heard in the legal academy and the courts" (p. xi). He is effective in countering the efforts of the legal professorate and pro-reform groups primarily with anecdotes and legal-logical argumentation. The book probably is not the answer for those seeking a clear empirical and statistical path through the rhetorical maze. Still, Smith offers a persuasive debunking of the myths of campaign finance regulation. His arguments demand a more intellectually honest and compelling response from those seeking reform than what we typically hear.

As the debate continues, two core issues remain unjoined. One is the challenge of engaging an American public that is politically disinterested, apathetic, and uninformed. Addressing this reality is essential, yet ignored. A troubling paternalism infects the reformers' efforts to level the playing field by diminishing the voices of the wealthy; they spuriously imply that current proposals will energize or invigorate our public debate. Instead, such proposals more accurately represent attempts to control or modulate certain identified voices the reformers find threatening. The American public is

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perceived as needing protection from the big-spending "soft money" donors and their misleading issue ads. Note here the anti-democratic McCain- Feingold provision that outlaws certain outside ads within 60 days of an election. No reform will produce a healthier or revitalized democracy without confronting the central problem of the passivity and indifference of the average citizen. Ironically, technology gives us ever greater capacity to combat big money in politics. Of course this requires MORE politics, especially the politics of concerted action-organizing, pooling resources, and the like. Unfortunately current reforms demand LESS of the people, reinforcing the anemic political engagement currently so prevalent.

Smith, by contrast, is confident that full disclosure of who gives what to whom is the only necessary regulation, allowing voters to adjust their voting accordingly. This gives too much credit to the public; it presupposes a people minimally engaged and interested enough to avail themselves of disclosure and to use it to inform their voting choices, a highly doubtable proposition. Again, the central question of how to reconnect the public is avoided.

The second neglected issue is not the money spent on campaigns, but the quality of campaign that result from that spending. I heartily concur when Smith belittles the proposition that we spend too much on campaigns. How can we invest too much in an electoral process that is the very lynchpin of our system of representative democracy? But Smith's rationale that high spending levels give us an "informed electorate"(p. 44) is either naive or disingenuous. One can conclude that we spend too little rather than too much on campaigns, but still find modern-day campaigns a failure in elevating the discourse. I find it patently self-evident that modern campaigns typically do a poor job of informing the electorate. Again, Smith and his opponents avoid the central question: can we achieve substantive campaigns that actually edify voters, and if so, how?