Encouraged by the U.S. Supreme Court, conservatives are launching a wholesale legal assault on campaign finance laws.
And among the leaders is a man once charged with enforcing those laws: former Federal Election Commission Chairman Bradley Smith.
His goals are big. He doesn’t want to just scale back the laws; he wants to pretty much wipe them out.
“Are we better off with McCain-Feingold?” Smith asks. If it were overturned, he adds, “that would put us in a system that existed before Jack Abramoff, William Jefferson, Bob Ney, Mark Foley and Ted Stevens. Those scandals happened during the McCain-Feingold era.”
Since his resignation from the FEC in 2005, Smith returned to his teaching job at Capital University Law School in Columbus, Ohio, and opened the Center for Competitive Politics to build a case against the regulatory system that limits individual donations to candidates, reins in the role of outside groups, and bans union and corporate contributions to political parties.
Over lunch in Washington, Smith said the need for an anti-regulation center came to him while he was running the FEC, when reporters and congressional aides would call looking for someone who could balance the pro-regulation voices in news accounts and hearings.
Smith concluded that the anti-regulation crowd was failing in a number of other ways, too.
The pro-regulation crowd has advocacy groups to lobby Congress and whip up public support, legal centers to defend the laws, research organizations to gin out studies and stacks of public opinion polls to aid their cause.
The opposition amounted to a couple of conservatives or libertarians scattered in think tanks around town and, usually, the Republican Party. “Everyone just said they were tainted by industry donations,” Smith says.
With financial support that came largely from individuals he declines to name, Smith opened the Center for Competitive Politics a year later to begin challenging the current campaign finance system in both federal court and the court of public opinion. His first target is rules applying to independent, outside groups, not those imposed on candidates and political party committees.
Among his first legal cases is one on behalf of SpeechNow.org, which is challenging the federal contribution limits and disclosure requirements of independent organizations, the so-called 527s that popped up in the 2004 presidential campaign to run advertisements and conduct voter turnout operations.
From his seat on the FEC in 2004, Smith refused — to the dismay of the Bush-Cheney reelection team — to shut down those groups, largely based on First Amendment arguments.
For a time, he was the subject of a whisper campaign led by frustrated Republicans, who wrung their hands as billionaire investor George Soros donated millions of dollars to launch a handful of pro-Democratic 527 groups.
Smith, they whispered to each other, was, after all, a Clinton appointee. Of course, their claims about the timing of his appointment were accurate, but the scandalous smear ignored the fact that he was the handpicked appointee of Republican congressional leaders and was part of a bipartisan package of FEC nominations.
His reputation improved when a new 527 group, Swift Boat Veterans for Truth, emerged in the 2004 presidential campaign to challenge Democrat John F. Kerry’s war credentials in a brutal advertising attack that significantly hobbled his campaign.
“It’s because of you we’re winning,” many of Smith’s one-time party critics began whispering in his ear.
Now Smith is bent on giving such groups even broader freedom to play on the political landscape. And he’s not alone.
Indiana attorney James Bopp Jr. is already making a name for himself by challenging federal and state campaign finance laws.
Bopp recently won a Supreme Court case that loosened the rules around corporate interest groups’ ability to run issue advertisements in the weeks before Election Day. And last week, he filed a lawsuit on behalf of another 527 organization, challenging a requirement that it disclose its donors. The group — Real Truth About Obama Inc. — intends to run advertisements critical of Democrat Barack Obama’s support of abortion rights.
With Bopp already in action, the arrival of Smith “seemingly doubled the number of challenges to campaign finance restrictions,” said Paul S. Ryan, an associate legal counsel for the Campaign Legal Center, which supports the regulations. “There is plenty of work to do,” Ryan explained.
Richard L. Hasen, a campaign finance expert at the Loyola Law School in Los Angeles, said the rightward shift on the Supreme Court is the fuel behind the spate of legal challenges.
“What the Center for Competitive Politics can do and is trying to do is to bring the right kind of cases before the court,” Hasen said, so Chief Justice John Roberts and his new coalition of conservatives can “knock them out of the park.”
Critics of the Smith-Bopp campaigns say their handiwork could roll back campaign finance laws to the Watergate era, when there were scant public records of who was giving money to politicians, no limits on how much they could give and little, if any, disclosure of how the money was spent.
But Smith doesn’t believe his side can prevail until public opinion also shifts against regulations.
Among his chief arguments: Government has no business telling people how much money they can spend on anything, including their favored political candidate. “It’s dangerous to give government the right to decide who has spoken too much and who has spoken too little,” he said.
Fred Wertheimer, another lawyer who has defended campaign finance regulations for more than a decade, admits that people on his side have a “fight on their hands” when it comes to the legal challenges.
But he suspects Smith’s public relations campaign won’t gain much traction.
“The public innately recognizes that large contributions buy access and that buys results in Washington and those results come at the taxpayer’s expense,” Wertheimer said.
“The reason I think there isn’t any chance of reducing public opinion in this area,” Wertheimer added, “is that the public’s sense on this has consistently existed, and they are right.”