SHOOTING THE MESSENGER

Smith is professor of law at Capital University in Columbus, Ohio. He is a leading expert on the practice and constitutionality of regulating campaigns and elections, his voluminous academic work routinely and approvingly cited in rulings issued throughout the federal and state court systems. And he is rumored to be Trent Lott’s choice to fill the soon-to-be-vacant “Senate Republican” seat on the FEC. Not coincidentally, one hopes, Smith is also a dogged and eloquent opponent of the FEC’s recent punitive expeditions against organizations and individuals who engage in what the agency regards as impermissible political discourse. Legislation like Shays-Meehan that would enshrine such FEC harassment in law, Bradley Smith has written, is “a patent violation of First Amendment rights.”

So, predictably enough, the “reform” crowd is now busily smearing Professor Smith as a nutcase. The Brennan Center for Justice at New York University has cobbled together a crude, one-and-a-half-page opposition-research job on Smith’s scholarly publications. And Brennan and two other so-called public interest groups hostile to unregulated political speech have used this cartoon account of the man’s work as the basis for a widely distributed letter, ostensibly addressed to President Clinton, denouncing Smith as “unfit” for the FEC. Where they think Smith is particularly vulnerable — and what has since gotten him rebuked on all the usual editorial pages as a “Flat Earth Society poobah” and “radical” — is the professor’s refusal to endorse “the fundamental anti-corruption rationale for the campaign finance laws: the rationale that was at the heart of the Supreme Court’s decision in Buckley v. Valeo upholding the constitutionality of the existing campaign finance laws.”

Which complaint is more than a bit ironic and entirely devious. Ironic, because the landmark 1976 Buckley case — invalidating, as incompatible with the First Amendment, all their most favored speech-restriction devices — is actually the one Supreme Court ruling the Brennan Center and other “reformers” are most determined to overturn. And devious, because it simply isn’t true that you have to be a crazed extremist to question “the fundamental anti-corruption rationale” for the one basic “reform” Buckley did uphold: a $ 1,000 federal limit on individual campaign contributions. Seven months ago, the Eighth U.S. Circuit Court of Appeals questioned that rationale so hard that it struck down an almost identical contribution limit in Missouri state law. And five months ago, the Supreme Court itself agreed — with Bradley A. Smith, you might say — that the constitutionality of such a limit finally, after 23 years, deserves serious review.

This momentous development is hardly a secret to the Brennan Center for Justice at New York University. One of Brennan’s clients, Missouri state representative Joan Bray, is a party to the pending high court proceeding.

In 1994, by combination of legislation and direct ballot proposition, Missouri enacted the most speech-restrictive campaign finance regime in the country. Much of it was judged unconstitutional by the courts over the next few years, but its inflation-adjusted contribution limits survived into 1998. That year, an obscure, underfunded candidate named Zev David Fredman ran for state auditor in the Republican primary. A political action committee called “Shrink Missouri Government” gave Fredman the maximum allowable donation of $ 1,075. Shrink wanted to give Fredman more money, and Fredman wanted to accept it, so they sued Missouri in federal court, alleging that the existing contribution cap represented a constitutionally unjustified constraint on his ability to conduct effective electioneering advocacy.

A district court rejected this argument and upheld the cap, but the Eighth Circuit soon enjoined its enforcement pending appeal. Over the next few days, Shrink gave Fredman an additional $ 1,250. It was too little, too late; outspent by his opponent nearly thirty-fold, Fredman lost the primary. During the 1998 general election, and while the Eighth Circuit was still considering the Shrink case, that same PAC gave Republican Alexander Hasler $ 500, $ 225 more than the challenged statute would have allowed in a race for state representative. He, too, lost — to three-term incumbent Joan Bray, who nevertheless, apparently feeling victimized by Shrink’s modest support of Hasler, joined the lawsuit as an “intervenor” on behalf of the state. Three weeks after the election, the Eighth Circuit found, on First Amendment grounds, for Shrink and Fredman against Missouri and Bray.

Now on appeal to the Supreme Court, Missouri attorney general Jay Nixon and Bray’s lawyers at the Brennan Center make a fairly clear and simple argument. In the 1976 Buckley decision, the Supreme Court approved a $ 1,000 federal campaign contribution limit, finding it justified by the government’s asserted interest in deterring the appearance of “corruption” commonsensically “inherent” in “large” donations of cash to candidates for national office. Nixon and Bray contend that Missouri’s comparable limit, justified on the same grounds, must therefore be equally constitutional on its face. Zev David Fredman, they argue, cannot claim that this limit specially burdened the exercise of his political speech rights; other candidates operated “effectively” under the same restrictions.

But there are powerfully convincing legal and practical objections to this Missouri appeal in Nixon v. Shrink. The state does not claim that any of its candidates has ever actually been corrupted by a “large” contribution of, say, $ 1,100. And for evidence that its concern over the “appearance” of corruption is legitimate, Missouri has only ever offered the testimony of its legislators that fear over “appearances” is what they had in mind when they enacted their limits. This won’t wash. Nothing in Supreme Court precedent, including Buckley, suggests that the government may restrict political speech simply by waving around a pledge that its intentions are honorable. In fact, in 1996, six members of the Court explicitly endorsed the view that the First Amendment only gives way to a fight against “harms” like corruption when those recited harms “are real, not merely conjectural.”

A $ 1,000 campaign contribution is today worth but a tiny fraction what it was in 1976 when Buckley was decided. Who seriously believes that a single such contribution remains “large” or can any longer “corrupt” a political candidate whose campaign now typically costs millions of dollars? Who seriously doubts that the effectiveness of such a candidate’s electioneering advocacy is grossly impinged by his legally enforced need to scratch around constantly for small-dollar donations? In any case, since when does the government — and not political candidates themselves — get to determine how much campaigning is minimally satisfactory?

This is just the beginning of what Missouri and its attorneys will confront before the Supreme Court. The justices will no doubt be curious about what remains implicit in the state’s defense of its $ 1,000 limit but is made shockingly explicit in the various friend-of-the-court briefs lately filed by campaign finance “reform” advocates.

Fifteen chief state election and campaign finance officers make clear that “corruption” is merely a figleaf excuse for contribution limits. The real purpose of such restrictions, they write, is to provide a “check on the ability of small numbers of wealthy contributors to . . . amass campaign funds grossly out of proportion to their numbers or the potency of their ideas.” Nice try, fellas, but the Supreme Court has long insisted that “leveling the playing field” like this is a goal “wholly foreign to the First Amendment.”

In a separate amicus filing on behalf of a long list of prominent congressional “reformers,” Senator Jack Reed of Rhode Island lets slip his movement’s total impatience with any constitutional barrier to its designs. The Supreme Court’s First Amendment rulings have “become a straitjacket” on his favored legislation, Reed harrumphs. Congress is entitled to “broad deference in the regulation of federal elections.” The high court must bow before “all such reforms” as Congress deems constitutional. So there.

And in an amazing footnote to the Clinton administration’s official brief in Shrink, U.S. solicitor general Seth Waxman gives voice as never before to the campaign “reform” movement’s essential contempt for political speech per se. The Supreme Court, Waxman proposes, might well grant campaign contributions the same level of First Amendment protection it accorded the “expressive conduct” at issue in the 1991 case Barnes v. Glen Theatre. Waxman does not further explain, but in Barnes the Court decided that it was okay for the state of Indiana to demand that female strippers cover their nipples and public hair with pasties and a g-string. By unavoidable inference: Participation in an American election, as a donor or recipient of campaign contributions, is an activity no more central to the First Amendment that waggling your privates at a bunch of dirty old men.

It is inconceivable that the Supreme Court will fail to repudiate the ugliness of arguments like these, however the justices ultimately resolve the practical questions presented to them by Nixon v. Shrink in oral argument this fall. When the Court does so repudiate the campaign finance “reform” movement, it would be nice if Bradley A. Smith could witness the event from a seat at the Federal Election Commission. He richly deserves the honor.

David Tell, for the Editors