Bradley Smith (law professor)

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Bradley Smith
Official portrait of Bradley A. Smith, Federal Election Commission.jpg
Official portrait, c. 2001
Chair of the Federal Election Commission
In office
January 2, 2004 –December 31, 2004
OccupationLaw professor
Signature Bradley A. Smith signature.svg

Bradley Alan Smith (born 1958) is the Josiah H. Blackmore II/Shirley M. Nault Professor at Capital University Law School in Columbus, Ohio. He previously served as commissioner, vice chairman, and chairman of the Federal Election Commission (FEC) between 2000 and 2005. He has held prior visiting appointments at Princeton University and West Virginia University. [1] He is best known for his writing and activities on campaign finance regulation. [2]

Contents

Career

Academia

Smith received a B.A. from Kalamazoo College and a J.D. from Harvard Law School in 1990. [3] After briefly practicing law with the Columbus, Ohio-based law firm of Vorys, Sater, Seymour and Pease, Smith joined the faculty at Capital University Law School in Columbus in 1993. [4]

In 1996, Smith published "Faulty Assumptions and Undemocratic Consequences of Campaign Finance Reform" in the Yale Law Journal . In "Faulty Assumptions", Smith set forth a case against campaign finance regulation, arguing that efforts to regulate money in politics had been based on a series of incorrect beliefs about the effects of money in politics and that as a result reform efforts had failed to accomplish their objectives and had made many of the problems of money in politics worse. [5] "Faulty Assumptions," and later articles by Smith, have been cited in numerous recent Supreme Court decisions striking down campaign finance laws on Constitutional grounds, including Citizens United v. Federal Election Commission. [6] In 2010, The New York Times called Smith the "intellectual powerhouse" behind the movement to deregulate campaign finance. [7] Smith followed "Faulty Assumptions" with a series of academic articles, including "Money Talks: Speech, Corruption, Equality and Campaign Finance", which focuses on Constitutional principles of campaign finance regulation. [8]

Smith also wrote Unfree Speech: The Folly of Campaign Finance Reform, published in 2001. Writer Eliza Newlin Carney called it a "reasonably lively read" and deemed his First Amendment defense of "issue-advocacy messages by interest groups" to be convincing, but she wrote that his other arguments for campaign finance deregulation lack credibility and are too dismissive of the risk of corruption. [9] Law professor J. Clark Kelso described the book as a "provocative work", and concluded that "Smith’s work is at its weakest in suggesting that large campaign contributions do not generate corruption or the appearance of corruption in political processes, and at its strongest in criticizing campaign finance regulation’s failure to live up to its promises and to solve the problem of corruption in a meaningful way". [10]

Reviewing the whole of Smith's work, legal historian Ann Southworth writes, "Smith has done more than any other scholar since the 1970s to advance the legal theories that ultimately prevailed in the Roberts Court." [11]

Federal Election Commission

Smith became a recurring witness before congressional panels on election matters. He was nominated to a six-year term on the FEC on February 9, 2000, by then-President Bill Clinton and confirmed to the post by the United States Senate. By this time, Smith was considered a leading expert on campaign finance in the United States, [12] with his writings on campaign finance and election issues having appeared in academic publications in addition to the Yale Law Journal, including the University of Pennsylvania Law Review and the Harvard Journal of Legislation. [13] The Brennan Center for Justice, a harsh critic of Smith's work, nevertheless recognized him as "the most sought after witness" to make the case for deregulation of campaign finance before congressional committees. [14]

Because of his contrarian, deregulatory views on campaign finance, there was a strong objection to his nomination from reform advocates. The libertarian magazine Reason noted that virtually all reform advocates "agreed that he was the wrong person for the job". [15] His nomination, however, received encouragement from supporters of campaign finance deregulation, such as the Cato Institute. [16]

As commissioner and, later, chairman of the FEC, Smith remained controversial, particularly in 2004, when, as chairman, he bucked the Republican Party and refused to support new regulations of "527 groups", organizations largely unregulated by campaign finance laws, that were generally believed to favour Democratic presidential candidate John Kerry. [17] As commissioner, he maintained an active speaking schedule and continued to criticize campaign finance laws. [18] He resigned from the FEC in August 2005 to return to teaching, writing in his resignation letter to President Bush, "Political activity is more heavily regulated than at any time in our nation's history." [19]

Non-profit work

After leaving the FEC, Smith returned to teaching at Capital University and founded a non-profit organization, the Center for Competitive Politics to promote deregulation of campaign finance. In 2017, the center changed its name to the Institute for Free Speech. [20] Smith served as a senior fellow at the Goldwater Institute, a member of the Board of Scholars at the Mackinac Center for Public Policy, a member of the board of trustees of the Buckeye Institute, and a member of the Editorial Advisory Board of the Harvard Journal of Law and Public Policy. He also sat on the advisory board of the Institute for Law and Politics at the University of Minnesota Law School and serves on the editorial advisory board of the Election Law Journal. In 2007–08, he was an adviser on the Constitution and the Courts for the presidential campaign of Mitt Romney.

"Unfree Speech" was cited in the Supreme Court's majority opinion in Citizens United v. Federal Election Commission , which held that corporations have a right to spend money in candidate elections. Smith's organization, the Center for Competitive Politics, was co-counsel for plaintiffs in SpeechNow.org v. Federal Election Commission, a 2010 Court of Appeals case that created Super PACs. [21] In 2012, Commentary called him "the single most important voice in the fight to roll back restrictions on political speech." [22] In May 2010, he was announced as one of four winners of the year's Bradley Prize, awarded annually by the conservative Lynde & Harry Bradley Foundation of Milwaukee, Wisconsin, "to innovative thinkers and practitioners whose achievements strengthen the legacy of the Bradley brothers." [23]

Smith is a board member for American Edge, a lobbying group for the technology industry. [24]

Related Research Articles

<span class="mw-page-title-main">Campaign finance reform in the United States</span> United States efforts to regulate fundraising for democratic election campaigns

Campaign finance laws in the United States have been a contentious political issue since the early days of the union. The most recent major federal law affecting campaign finance was the Bipartisan Campaign Reform Act (BCRA) of 2002, also known as "McCain-Feingold". Key provisions of the law prohibited unregulated contributions to national political parties and limited the use of corporate and union money to fund ads discussing political issues within 60 days of a general election or 30 days of a primary election; However, provisions of BCRA limiting corporate and union expenditures for issue advertising were overturned by the Supreme Court in Federal Election Commission v. Wisconsin Right to Life.

<span class="mw-page-title-main">Federal Election Commission</span> United States independent regulatory agency that regulates federal elections

The Federal Election Commission (FEC) is an independent agency of the United States government that enforces U.S. campaign finance laws and oversees U.S. federal elections. Created in 1974 through amendments to the Federal Election Campaign Act, the commission describes its duties as "to disclose campaign finance information, to enforce the provisions of the law such as the limits and prohibitions on contributions, and to oversee the public funding of Presidential elections." It is led by six commissioners who are nominated by the president and confirmed by the Senate.

<span class="mw-page-title-main">Campaign finance</span> Fundraising for political campaigns

Campaign finance – also called election finance, political donations, or political finance – refers to the funds raised to promote candidates, political parties, or policy initiatives and referendums. Donors and recipients include individuals, corporations, political parties, and charitable organizations.

<span class="mw-page-title-main">Bipartisan Campaign Reform Act</span> 2002 American law regulating political campaigns

The Bipartisan Campaign Reform Act of 2002, commonly known as the McCain–Feingold Act or BCRA, is a United States federal law that amended the Federal Election Campaign Act of 1971, which regulates the financing of political campaigns. Its chief sponsors were senators Russ Feingold (D-WI) and John McCain (R-AZ). The law became effective on 6 November 2002, and the new legal limits became effective on January 1, 2003.

Buckley v. Valeo, 424 U.S. 1 (1976), was a landmark decision of the US Supreme Court on campaign finance. A majority of justices held that, as provided by section 608 of the Federal Election Campaign Act of 1971, limits on election expenditures are unconstitutional. In a per curiam opinion, they ruled that expenditure limits contravene the First Amendment provision on freedom of speech because a restriction on spending for political communication necessarily reduces the quantity of expression. It limited disclosure provisions and limited the Federal Election Commission's power. Justice Byron White dissented in part and wrote that Congress had legitimately recognized unlimited election spending "as a mortal danger against which effective preventive and curative steps must be taken".

A 527 organization or 527 group is a type of U.S. tax-exempt organization organized under Section 527 of the U.S. Internal Revenue Code. A 527 group is created primarily to influence the selection, nomination, election, appointment or defeat of candidates to federal, state or local public office.

The Federal Election Campaign Act of 1971 is the primary United States federal law regulating political campaign fundraising and spending. The law originally focused on creating limits for campaign spending on communication media, adding additional penalties to the criminal code for election law violations, and imposing disclosure requirements for federal political campaigns. The Act was signed into law by President Richard Nixon on February 7, 1972.

McConnell v. Federal Election Commission, 540 U.S. 93 (2003), is a case in which the United States Supreme Court upheld the constitutionality of most of the Bipartisan Campaign Reform Act (BCRA), often referred to as the McCain–Feingold Act.

First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978), is a U.S. constitutional law case which defined the free speech right of corporations for the first time. The United States Supreme Court held that corporations have a First Amendment right to make contributions to ballot initiative campaigns. The ruling came in response to a Massachusetts law that prohibited corporate donations in ballot initiatives unless the corporation's interests were directly involved.

Matching funds are funds that are set to be paid in proportion to funds available from other sources. Matching fund payments usually arise in situations of charity or public good. The terms cost sharing, in-kind, and matching can be used interchangeably but refer to different types of donations.

<span class="mw-page-title-main">Campaign finance in the United States</span> Contributions to American election campaign funds

The financing of electoral campaigns in the United States happens at the federal, state, and local levels by contributions from individuals, corporations, political action committees, and sometimes the government. Campaign spending has risen steadily at least since 1990. For example, a candidate who won an election to the U.S. House of Representatives in 1990 spent on average $407,600, while the winner in 2022 spent on average $2.79 million; in the Senate, average spending for winning candidates went from $3.87 million to $26.53 million.

<span class="mw-page-title-main">Ellen Weintraub</span> Member of the United States Federal Election Commission

Ellen L. Weintraub is an American attorney who serves as a Commissioner on the Federal Election Commission.

Davis v. Federal Election Commission, 554 U.S. 724 (2008), is a decision by the Supreme Court of the United States which held that section 319 of the Bipartisan Campaign Reform Act of 2002 unconstitutionally infringed on candidates' rights as provided by First Amendment.

Citizens United v. Federal Election Commission, 558 U.S. 310 (2010), is a landmark decision of the Supreme Court of the United States regarding campaign finance laws and free speech under the First Amendment to the U.S. Constitution. The court held 5–4 that the freedom of speech clause of the First Amendment prohibits the government from restricting independent expenditures for political campaigns by corporations including for-profits, nonprofit organizations, labor unions, and other kinds of associations.

The Institute for Free Speech (IFS), formerly called the Center for Competitive Politics, is a 501(c)(3) nonprofit organization headquartered in Washington, D.C. IFS' stated mission is to "promote and defend the First Amendment rights to freely speak, assemble, publish, and petition the government through strategic litigation, communication, activism, training, research, and education." It has worked to oppose limits on political donations and other campaign regulations.

<span class="mw-page-title-main">Trevor Potter</span> Lawyer and member of the United States Federal Election Commission

Trevor Alexander McClurg Potter is an American lawyer who served as the former commissioner and chairman of the United States Federal Election Commission. He is the Founder and President of the Campaign Legal Center, a nonprofit organization which works in the areas of campaign finance and elections, political communication and government ethics. A Republican, he was the General Counsel to John McCain's two presidential campaigns. Potter is a vocal critic of unlimited corporate spending and dark money in politics allowed by the Supreme Court of the United States' Citizens United v. FEC ruling.

<span class="mw-page-title-main">Dark money</span> Undisclosed American political contributions

In politics, particularly the politics of the United States, dark money refers to spending to influence elections, public policy, and political discourse, where the source of the money is not disclosed to the public.

McCutcheon v. Federal Election Commission, 572 U.S. 185 (2014), was a landmark decision of the US Supreme Court on campaign finance. The decision held that Section 441 of the Federal Election Campaign Act of 1971, which imposed a limit on contributions an individual can make over a two-year period to all national party and federal candidate committees, is unconstitutional.

<i>FEC v. National Conservative PAC</i> 1985 United States Supreme Court case

FEC v. National Conservative PAC, 470 U.S. 480 (1985), was a decision by the Supreme Court of the United States striking down expenditure prohibitions of the Federal Election Campaign Act of 1971 (FECA), which regulates the fundraising and spending in political campaigns. The FECA is the primary law that places regulations on campaign financing by limiting the amount that may be contributed. The Act established that no independent political action committee may contribute more than $1,000 to any given presidential candidate in support of a campaign.

Federal Election Commission v. Ted Cruz for Senate, 596 U.S. 289 (2022), was a case related to the First Amendment to the United States Constitution. The Supreme Court of the United States struck down section 304 of the Bipartisan Campaign Reform Act, which limited the amount of money that candidates could be paid on personal loans to their campaign.

References

  1. ↑ "Hon. Bradley A.Smith". fedsoc.org. 5 April 2023.
  2. ↑ "Bradley A. Smith – Capital University Law School". law.capital.edu. Retrieved 2018-02-08.
  3. ↑ "Bradley A. Smith". Federal Election Commission . January 20, 2024.
  4. ↑ "Bradley A. Smith". Mackinac Center for Public Policy . Retrieved January 20, 2024.
  5. ↑ 105 Yale Law Journal 1049 (1996)
  6. ↑ 558 U.S. 310, 343
  7. ↑ Lichtblau, Eric (October 15, 2010). "Long Battle by Foes of Campaign Finance Rules Shifts Landscape". The New York Times .
  8. ↑ 86 Georgetown Law Journal 45 (1997)
  9. ↑ "D.C. Dispatch | 2001.06.13 | Book Review". The Atlantic . Archived from the original on 2008-07-06. Retrieved 2017-03-05.
  10. ↑ Kelso, Clark (January 2002). "Mr. Smith Goes to Washington". Election Law Journal: Rules, Politics, and Policy. 1. Election Law Journal: 75–83. doi:10.1089/153312902753300097.
  11. ↑ Southworth, Ann (2 January 2024). Big Money Unleashed: The Campaign to Deregulate Election Spending. University of Chicago Press. p. 60. ISBN   9780226830711.
  12. ↑ Hollis-Brusky, Amanda (2019). Ideas With Consequences. Oxford University Press. pp. 66–85. ISBN   9780190933746.
  13. ↑ A. Smith, Bradely (1999). "Some Problems With Taxpayer-Funded Political Campaigns". Penn Carey Law Journal. 148 (2): 591. Retrieved 19 October 2024.
  14. ↑ "Bradley A. Smith: A Potential FEC Nominee Who Would Repeal All Election Laws And Abolish The Agency He Aspires To Head". Brennan Center for Justice. June 3, 1999.
  15. ↑ Lynch, Michael (July 2001). "Prof. Smith Goes to Washington". Reason. Retrieved 2015-01-28.
  16. ↑ Pilon, Roger (July 30, 1999). "A 'Radical' for the FEC". Cato Institute.
  17. ↑ Carlise, John; Hrab, Neil (August 4, 2004). "New Kids on the Block". Competitive Enterprise Institute. Archived from the original on February 2, 2015. Retrieved January 27, 2015.
  18. ↑ See e.g. Bradley Smith, Regulation and the Decline of Grassroots Politics, 50 Catholic University Law Review 1 (2001)
  19. ↑ "FEC's Bradley Smith calls it quits". cnet.com.
  20. ↑ "Center for Competitive Politics Renamed Institute for Free Speech".
  21. ↑ Simpson, Steve (August 2010). "Campaign Finance: IJ's Long-Term Investment Pays Off". The Institute for Justice. Archived from the original on 2012-06-14. Retrieved 2012-07-20.
  22. ↑ Tobin, Jonathan (January 5, 2012). "Was There Too Much Free Speech in Iowa?". Commentary.
  23. ↑ "Home". bradleyprizes.org.
  24. ↑ Romm, Tony (12 May 2020). "Facebook is quietly helping to set up a new pro-tech advocacy group to battle Washington". The Washington Post .
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