Bench Memos

Bradley Smith’s “The Myth of Campaign Finance Reform”

In anticipation of a possible Supreme Court ruling this morning or tomorrow in the Citizens United campaign-finance case, I’d like to call attention to an excellent essay, “The Myth of Campaign Finance Reform,” by law professor (and former FEC commissioner) Bradley A. Smith in the current issue of the outstanding new journal National Affairs.  (My Ethics and Public Policy Center colleague, and frequent Corner contributor, Yuval Levin is editor of National Affairs.)


Here’s Smith’s summary of his general argument:

The century-old effort to constrict the ways our elections are funded has, from the outset, put itself at odds with our constitutional tradition. It seeks to undermine not only the protections of political expression in the First Amendment, but also the limits on government in the Constitution itself — as well as the understanding of human nature, factions and interests, and political liberty that moved the document’s framers.

Smith also explains how “each step in the effort to limit campaign spending turn[ed] out to advantage the party that sought it” and that campaign-finance laws could themselves therefore be seen to be a form of corruption. 

Smith’s account also suggests that previous federal efforts to bar corporate contributions to campaigns, such as the 1907 Tillman Act, may have been tolerated, and not been subjected to constitutional challenge, because they were so ineffective:  “they did little to stem the overall flow of money into campaigns, due to weak enforcement mechanisms and various loopholes that could readily be exploited.”  In other words, the history of non-enforcement and lawful evasion of those longstanding laws does not establish that they would be constitutionally permissible if they were effectively enforced and lacked readily exploitable loopholes.  And those laws are not significant monuments on the legal landscape. 

The oldest precedent that might be overturned in Citizens United is the Court’s 1990 decision in Austin v. Michigan State Chamber of Commerce, but that’s a ruling that is widely regarded as in conflict with other precedents, and even Solicitor General Elena Kagan walked away from the Court’s actual rationale in Austin (as I discuss here).

[Cross-posted on The Corner]