Top Election-law Conservative Brad A. Smith on Campaign Spending Limits

The Downriver native is the former chair of the Federal Election Commission
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Brad A. Smith - campaign spending limits
Brad A. Smith

One of the most controversial Supreme Court decisions of recent times is Citizens United v. Federal Election Commission, a landmark 2010 ruling that struck down any political spending limits for outside groups, such as companies, advocacy organizations, or unions. The case kicked off an era of dizzying campaign spending that critics say provides the rich and powerful even more influence over the political process.

Yet to Brad A. Smith, a Downriver native and former chair of the Federal Election Commission, the case was a career-capping triumph. For decades, Smith, 63, laid the intellectual groundwork for it in such works as a 1996 Yale Law Journal essay in which he asserted that limits on donations and spending violate the First Amendment. 

Smith, a professor at Capital University Law School in Ohio and founder of the D.C.-based nonprofit Institute for Free Speech, got his start in politics right out of Kalamazoo College as a legislative aide for the Small Business Association of Michigan. In 2000, he was confirmed to a seat on the FEC, where he would serve as chair in 2004.

With the 2020 election still somehow in the news and with the 2022 cycle revving up, Smith spoke to Hour Detroit about his path to the apex of American conservative thought, what’s wrong with the FEC, and why Citizens United should be expanded. 

Hour Detroit: Were you always interested in election law?

Brad A. Smith: The answer is no, although when I was nominated for the FEC in 1999, I pulled up my files from Kalamazoo College when I took my senior comprehensive exams in political science. I had forgotten this, but I wrote about campaign finance then, and the views I expressed there, while much less sophisticated, are basically the views I held 20 years later.

Should there be limits on campaign donations?

I am something of an absolutist. I don’t think the government should regulate in this space. I think it’s bad. The Constitution clearly gives the federal government some power over elections, but an election is not the same as a campaign. When does the campaign begin? When does it end? When did Hillary Clinton start running for president? Probably around 1974? The whole purpose of the First Amendment was to prevent the government from trying to determine who’s spoken too much or who’s not spoken enough.

How much regulation is enough? The concerns people have about the power of money or lack of equality of a platform from which to speak are very American concerns we’ve long had. But in the end, the whole point of the First Amendment is that the government’s power to regulate is worse than the disease of letting everybody speak and see how things shake out.

You’re a Republican, but Arizona Sen. John McCain, a proponent of campaign spending limits, voted against your confirmation. Did you and he ever hash it out?

No, but I would have welcomed that. Back when I was FEC chairman in 2004, Congress held an oversight hearing and Sen. McCain asked to testify. Before it starts, he sat at the table alone. Now, he had refused to meet with me, not that I’d made any great effort. But I thought I’d go over and say hi. I had just had abdominal surgery, so I was in a wheelchair, and my assistant wheeled me over to McCain’s table. I stood up from the chair and offered my hand and he instinctively took my hand, but then, as he looked up, he realized who it was. He said, “I’m not going to shake hands with you. I know who you are. You’re a bully and a coward. And you have no respect for the Constitution.” This always made me laugh. 

Do you believe in campaign fundraising and spending disclosure rules such as what is in the For the People Act that Democrats are trying to pass in Congress?

Well, what has to be disclosed? As part of that bill, groups ranging from the Sierra Club to the NRA must disclose all of their donors even for things they’re doing that are not directly related to political campaigns. That’s really none of the government’s business. We need to limit disclosure to actual campaign contributions, things that a candidate controls.

Michigan Gov. Gretchen Whitmer faced a scandal this spring when she flew on a private jet to see her ailing father. A private company paid for it and her reelection fund is  reimbursing. Is that odd to you? 

Oh, Whitmer may make an argument that it was very important for her to be able to get down there and get back so she could continue to burnish her image as the can-do governor, which is going to be important for her reelection. You can tie it into the campaign, but that doesn’t really make it a campaign expense. If someone else paid it directly, then the question is, what are the gift rules? And if it was paid for by the campaign, then to me, it could spark an investigation of whether it’s a legitimate campaign expense. The answer would probably be no.

Will Citizens United doom the Republic?

No. First, it gets the government out of the business of regulating who can speak. One of the major campaign finance cases that Citizens United overruled was Austin v. Michigan Chamber of Commerce, which prohibited corporate spending in politics but allowed union spending. Getting the government out of trying to referee those disputes is good. But it also increased the number of voices speaking out in politics and enabled groups to engage in independent spending without limits. That allows issues to get into the campaign that the candidates sometimes don’t want to talk about. And we’ve actually had more competitive politics since Citizens United, at least at the federal level. 

Was the 2020 election stolen for Joe Biden?

No. 

Are you concerned about the GOP’s inability to move on from Trump?

Yes, but if I were a Democrat, I’d be very concerned about my party, too. But yes, I do think it’s not advantageous to spend a lot of time trying to relitigate that election. The Republicans need to be setting forth a winning agenda for 2022 or 2024.

Has Trump harmed faith in the system?

Yes, he damages credibility. We have large segments of the American public who don’t trust the results of the election. I would point out that this is not merely a Trump phenomenon. Before the election, prominent Democrats also said if they lost it would be because of fraud or other shenanigans. Stacey Abrams lost the Georgia governor’s race in 2018, and that made her a national celebrity by going around claiming that she lost because she was treated unfairly and there was suppression. She didn’t have much evidence for that, but she’s a Democratic rock star. 

Is the current flurry of election legislation in statehouses, including in Lansing, necessary?

I think the criticism is vastly overblown. They’re calling the Georgia law or the Arizona law the new Jim Crow or Jim Crow on steroids. It’s embarrassing to the speaker, it’s insulting to the listeners, it’s insulting to people who actually put it on the line to fight Jim Crow laws back in the 1950s and 1960s and before. If you look at the things that have been passed in states, most of them seem pretty realistic. Some things do make it a little less convenient to vote. But there’s more to voting than convenience. 

What we could use more than anything right now would be to go back to elections as most people have known and understood them. I would not do away entirely with some innovations of the last 20 years like early voting and no-excuse absentee voting, but I would shrink those way back down. The norm should be that you’re expected to go out and vote in person on Election Day in a relatively transparent process. 

Any other thoughts about your career and how you got there?

I came from Downriver, my dad was a schoolteacher, so we were, I guess, a white-collar family. But so many of my friends from high school went into the plants. I spent a couple summers in college working for the Ford Woodhaven Stamping Plant, which was enormous back then. That has long influenced my attitude toward politics. My Michigan upbringing is there and comes through in a lot of the things that I think about how politics work, or should work.


This story is featured in the November 2021 issue of Hour Detroit magazine. Read more stories in our digital edition.

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