All Citizens Are Entitled to an Impartial FEC

(This is the fourth in a series of five posts on the demonstrated bias of Democratic FEC Commissioner Ellen Weintraub.  The first installment is here, the second here, the third here, and the last installment will be posted in the next few days.)

Former FEC Chairman Brad Smith was the first to warn the American public, detailing the legal problems presented by Commissioner Weintraub's actions in a June 2017 blog post at the Institute for Free Speech.  According to Chairman Smith, "Federal Election Commissioner Ellen Weintraub's actions in recent months cast serious doubt on whether she can continue to credibly carry on her duties as a Commissioner.  She should recognize this predicament and do the honorable thing, which is to resign."  Chairman Smith outlined federal law that requires government officials to act without bias and documented Weintraub's violations of that legal duty.  
  
Chairman Smith also explained the corrosive effects of the anonymous AltFEC Twitter feed in 2017, before it was widely known that the AltFEC twitter feed is sponsored by Weintraub's staff.  

Liberal defenders like Professor Rick Hasen rallied to Weintraub's defense.  Hasen called Chairman Smith "mean spirited" for his analysis of Weintraub's bias.  No doubt Professor Hasen has exhibited some mean spiritedness on his own blog.  More important than his one-sided view of campaign finance discourse, however, apparently liberals like Hasen thinks it's okay for Democratic law enforcement officials like Loretta Lynch and Ellen Weintraub to enforce the law with prejudice.  They are not in the least bit concerned for "good government" when it comes to law enforcement bias, which is its own form of corruption.  

But Chairman Smith was right and it shouldn't take a national controversy like Lois Lerner or Peter Strozk to restore the appearance of fairness and impartiality.  Weintraub's demonstrations of bias are worse than the Peter Strozk controversy.  Her public political jabs at the President go well beyond private texts and emails.  And her votes to punish Trump demonstrate that she will use her public office to get the President.  Yet, there has been little outcry about it.   

The FEC is a law enforcement agency.  Commissioner Weintraub is a law enforcement official.  Nobody looking at this evidence could reasonably conclude that Commissioner Weintraub is unbiased, fair and neutral in her approach to President Trump.  Nor is she known throughout Washington, DC as a dispassionate, objective regulator.  Rather, she has a reputation as a flamboyant, outspoken ideologue, given to partisan infighting and polarization on the Commission.  The strong opinions she and her confidential counsel have expressed about President Trump (and other Republicans) taint everything the FEC does.  

President Trump is entitled to not only actual neutrality but the absolute appearance of neutrality in the enforcement of campaign finance laws by the FEC.  That neutrality does not exist so long as Commissioner Weintraub and her office participate on Trump cases.  Like the FBI fired Peter Strozk, Commissioner Weintraub should do the right thing and remove herself from all cases related to Donald Trump.      

Another Court Criminalizes Political Activity -- Will It Be Applied Equally?

The U.S. Court of Appeals for the Eighth Circuit has ruled, in United States v. Benton (8th Cir. May 11, 2018) that three officials from Ron Paul's 2012 presidential campaign committed criminal acts by (1) paying an Iowa State Senator for various services, including his endorsement, through a sub-contract with a video production vendor and (2) reporting the purpose of the expenditure as "audio/visual services."

The State Senator indeed provided "audio/visual services" to the Paul campaign by recording telephone messages and appearing on television for the Paul campaign.  He also traveled for the campaign and encouraged support for the campaign.  But federal prosecutors claimed the main purpose of the payment was the State Senator's "endorsement," which was not reported as the purpose of the payment.

All three of the Republican political operatives were convicted and punished.  One had his house raided and went to prison.    

The ruling has serious implications for the Hillary Clinton campaign and the Democratic National Committee.  News media have reported that the Clinton campaign and DNC funneled money to the Perkins Coie law firm, which in turn sub-contracted with an opposition research firm, Fusion GPS, which in turn sub-contracted with a foreign operative, Christopher Steele, to perform opposition research about Donald Trump.  The foreign operative reached out to Russians with Kremlin connections for information that might harm Donald Trump's candidacy.  The Clinton campaign reported the purpose of its payments to Perkins Coie as "legal services."  One liberal group has filed a complaint with the FEC over the activity. 

RNLA member Prof. Brad Smith noted that this decision could impact Perkins Coie:

“If I'm Perkins Coie, right now I'm a bit nervous about the reporting of payments to Fusion GPS,” said Brad Smith, a former FEC chairman and current chairman of the Institute for Free Speech.

Republicans do not support the criminalization of politics.  But Republicans do respect the rule of law and equal justice.  

In First Issued Opinion, Judge Ho Relies on Constitution and Would Overturn Low Contributions Limit

RNLA member Prof. Brad Smith wrote about the first judicial opinion issued by Judge James Ho, one of President Trump's nominees to the Fifth Circuit:

“The unfortunate trend in modern constitutional law is not only to create rights that appear nowhere in the Constitution, but also to disfavor rights expressly enumerated by our Founders.” . . .

His first opinion, released in April, was a dissent in a case asking whether an Austin, Texas, $350 limit on political contributions was constitutional. . . . He began with a detailed analysis as to why Austin’s $350 limit on campaign contributions should be struck down as unconstitutionally low under Supreme Court precedent. Straightforward enough. Ho went further, questioning the right of government to limit political participation at all. “As citizens,” he wrote, “we enjoy the fundamental right to express our opinions on who does or does not belong in elected office.” 

Prof. Smith describes how Judge Ho applied the anti-corruption standard that is the only constitutionally permissible rationale for contribution limits, according to the Supreme Court, in a common-sense, real-world fashion, instead of the in the theoretical, and therefore far too expansive, manner in which it is usually applied: 

Ho pointed out that contribution limits prohibit the exercise of protected First Amendment rights to support candidates and voice political views even when there is no corruption whatsoever. Adding a badly needed dose of realism, Ho wrote, “Countless Americans contribute for no other reason than to support candidates who share their beliefs and interests … without any inkling of a quid pro quo agreement. Indeed, many Americans contribute without ever even communicating with the candidate. … A donor might simply be inspired by the candidate’s prior record of public service, proposed future action, or a particular speech or debate performance. Such contributions are far from corrupt.” . . . 

What makes Ho’s opinion so refreshing is that it emphasizes actual corruption and the motives of donors, bringing campaign finance law back to the real world. Too often courts have sanctioned vague restrictions on political speech to meet nebulous goals and strained hypotheticals. The First Amendment is not a relic of an era gone by, and it’s rewarding to see a judge who thinks the rights enumerated in the Constitution are still meaningful.

Judge Ho's opinion respects the text of the Constitution, and his reliance on the Constitution protects the enumerated rights of individuals against over-regulation by the government.  This is the kind of text-based legal reasoning starting to be issued around the country by judges nominated by President Trump, who are beginning to restore the rule of law to the judiciary.

Democrat Hypocrisy on Tax Cut Bonuses vs. Campaign Finance Disclosure

Writing in the Washington Examiner, Prof. Brad Smith astutely pointed out the disconnect between House Minority Leader Nancy Pelosi's response to employees receiving $1,000 bonuses as a result of the tax cut bill passed in December and the current campaign finance disclosure thresholds:

. . . The truth is that the U.S. today has more extensive disclosure than ever before. Contrary to popular myth, even “super PACs” are required by law to publicly disclose all donors giving more than $200. Traditional PACs, political parties, and candidates must do the same. In many states, the disclosure thresholds are much lower — as little as $10. 

Which takes me back to “crumbs.” If Nancy Pelosi thinks that $1,000 is “crumbs,” why does she support a law that requires every American who contributes more than $200 (and as little as $10 in some states) to a candidate, political party, or PAC, to be reported to the government, with their names, addresses, and employment information published for the world to see? . . . 

. . . A $200 contribution represents about one one-hundredth of 1 percent of what the average winning House candidate spent in 2016. No one in Congress is being corrupted by $200 contributions. Nor do undecided voters learn anything from seeing the personal information of thousands of small donors, whom they almost certainly have never heard of. 

These disclosure thresholds were low when enacted, and haven’t been adjusted, not even for inflation, since 1979. Studies have shown that compulsory disclosure of campaign contributions discourages small donor political participation. . . . The threshold at which contributor information must be publicly disclosed should be substantially higher than it currently is. That would simplify the reporting system, make harassment of small donors less likely, and encourage small donor participation. That would be one campaign finance reform both Left and Right could get behind. And it wouldn’t be “crumbs.”

Democrats and liberals are quick to dismiss when Americans get to keep more of their hard-earned money (and of course, $1,000 is a substantial amount to most people, even if not to multi-millionaire Pelosi).  Yet despite lamenting the lack of small donor participation in the political system, they champion outdated disclosure requirements that discourage small donors and require disclosure of small contributions of which a candidate takes no notice.  And as Prof. Smith describes, in this era of political violence and intimidation, the disclosure requirements open up everyday Americans to bullying and threats of violence for expressing their political beliefs through their contributions.

Remember When the IRS Targeted Conservative Organizations?

RNLA member Brad Smith wrote last week in the Washington Examiner to remind us about how the IRS under President Obama targeted conservative organizations, delaying their applications for tax-exempt status and asking harassing and illegal questions as part of the IRS' heightened review process for organizations with names containing such dangerous words as "Patriot":

Finally, last October, the IRS signed a consent decree in federal court in which it admitted to targeting conservative organizations for more than two years, from 2010 through 2013. . . . This IRS targeting of conservative organizations in the run-up to the 2012 election should be one of the major scandals of our time. Researchers from Stockholm University, Harvard’s Kennedy School of Government, and the American Enterprise Institute concluded that a fully mobilized Tea Party, unhindered by IRS harassment, would have brought the Republican Party between 5 and 8.5 million votes. You may recall Obama won the popular vote by just under 5 million votes. 

Yet this issue has quietly gone away without any consequences for the wrongdoers, and the press has already started changing the history books:

Instead, what we are now seeing is an outright attempt to rewrite history so as to whitewash the entire affair. Newsweek has gone so far as to call the scandal “fake news,” with one of its columnists calling it “a lie.” A Dec. 29 editorial by the Washington Post claims that there was “mismanagement … but not deliberate targeting.”

When the left and the media do acknowledge the targeting and harassment, they are quick to point out that liberal organizations were also targeted.  But as Prof. Smith notes, the IRS admitted that 75% of the organizations targeted were conservative-leaning, while less than 5% were progressive-leaning.  Prof. Smith concludes by reminding readers of the source of the targeting scandal:

As we have documented elsewhere, in targeting conservative organizations in the run-up to the 2012 election, the IRS appeared to be acting at the suggestion, though not the direct request, of President Obama and leading Democratic lawmakers. This was not a case of mere “mismanagement,” but a bureaucracy responding to the political demands of the party then in power.

Congress should make sure that this never happens again, and act to get the IRS out of the business of regulating politics. 

The IRS targeting scandal reminds us to be wary of government bureaucracies with the power to regulate political speech, which is why legislation such as the misnamed "Honest Ads Act" and many informal proposals to respond to Russian efforts to interfere in the 2016 election are so dangerous.  

Political Speech At Risk, Again

RNLA members Brad Smith and Eric Wang coauthored an op-ed in The Hill debunking proposed legislation in Senate, which would have vast consequences if enacted. The piece looks at the "DISCLOSE Act of 2017" introduced by Senator Whitehouse (D-RI) which would restrict and heavily regulate political speech in America ahead of elections.

This is not the first introduction of a bill like this. Rather, it is just the latest version to drop into the "legislative hopper" in the wake of the 2016 Election and alleged Russian attempted interference with the presidential election. This 2017 version is just an opportunistic way to limit political speech at home.

Mr. Smith and Mr. Wang write:

Foreign interference with our elections is already illegal. Under existing law, foreign nationals and foreign corporations are strictly prohibited from making political contributions and independent expenditures in connection with elections for federal, state, and local office. . . Under existing law, foreign nationals and foreign corporations are strictly prohibited from making political contributions and independent expenditures in connection with elections for federal, state, and local office. However, the Federal Election Commission (FEC) has properly recognized that millions of Americans have not surrendered their right to political speech simply because they work at foreign-owned corporations. Thus, domestic subsidiaries of foreign companies like Anheuser-Busch, Bayer Health and Honda Motor, which are integral parts of the national and local economies, are permitted to engage in certain political activities, so long as those activities are directed by American citizens.

The Disclose Act of 2017 introduced by Whitehouse would upend the existing law by categorically prohibiting any political activity by a corporation or subsidiary if more than 20 percent of its voting shares are foreign-owned. This percentage ownership limit is a smokescreen, however, as the bill also would much more severely prohibit any corporate political activity if a foreign national “has the power to direct, dictate, or control the [corporation’s] decisionmaking process.” Because the owner of even one share of a publicly traded corporation generally has such power through a shareholders meeting or a proxy vote, this provision likely would strip away the political speech rights of any public company with even one foreign shareholder.

In a vacuum, perhaps we could be accused of over-reading this extreme result into the bill. But FEC Commissioner Ellen Weintraub outlined this very same legal approach in a New York Times opinion last year as a way to counteract the Supreme Court’s 2010 Citizens United decision, which permitted certain corporate political activity. Thirty-seven of the 38 Senate sponsors and co-sponsors of the latest Disclose Act who were in the chamber in 2014 also voted to amend the Constitution to override Citizens United. While that effort failed, it now appears those Senators are trying to use a mere bill to accomplish the same result, a maneuver that is clearly unconstitutional.

Aside from its foreign national provisions, the latest Disclose Act also contains numerous purported disclosure requirements (hence its name). But those disclosure provisions are also ploys to shut down political speech. For example, the bill would require any corporation (even one that has no foreign owners at all) making a “campaign-related disbursement” to disclose all of its “beneficial owners,” a term which likely includes any shareholder. For a company with tens of thousands of shareholders, including many who own shares through mutual funds and are unknown to the corporation, complying with this requirement would be practically impossible, and thus political speech would be essentially prohibited. . . .

This is yet another example of the left trying to politically capitalize on the alleged Russian attempted interference with our past election. Rather than directly addressing what allegedly occurred last year, the left would rather limit political speech overall, even from domestic sources and especially from those who may disagree with them.  Private entities such as Facebook are also changing their practices, which raises concerns about private regulation of political speech by unaccountable--but nonetheless powerful--brokers of communication in our modern era.

Former FEC Chairman Brad Smith: FEC's Weintraub Should Resign

Former FEC Chairman Brad Smith wrote today that it is time for FEC Commissioner Ellen Weintraub to resign, because her political attacks against President Trump and White House Counsel Don McGahn are jeopardizing the FEC's ability to perform its legitimate function:

These various examples show a trend, not of one-off slips of the tongue or misdirected zeal, but rather of a concerted messaging strategy whereby Commissioner Weintraub has intentionally aligned herself with those opposed to the President and his White House Counsel. Thus, while skirting along the edges of government ethics rules, Weintraub has placed herself in a position where any participation by her in a matter involving the Trump campaign could jeopardize any agency finding against the campaign. . . .

For some time now, Weintraub has apparently given up on the substantive work of the FEC in favor of pursuing her obsession with McGahn (who left the Commission nearly four years ago) and political grandstanding. On the latter front, her erratic behavior goes beyond criticizing McGahn and attempting to troll the President. In 2016, she appeared at a “Democracy Awakening” rally, leading the crowd in chants of “Hell No” and “Hell Yes,” while promoting a variety of liberal goals, and criticizing political donors for being overly “white” and “male.” In 2015, having lost a vote at the Commission to launch a new rulemaking, she pulled the stunt of petitioning her own agency to start such a rulemaking. When her colleagues refused to accept her petition, she accused them of denying that she was a “person” and used an open meeting of the Commission to make fatuous arguments about the FEC’s statute and commissioners’ eligibility to file a petition that would earn an “F” in any law school class on statutory construction — even at Harvard. 

If Commissioner Weintraub wishes to be an unserious, progressive martyr on the Commission, it is certainly within her rights to do so. Indeed, that may be her strategy to stay on the Commission, even though her term ended over a decade ago (she continues to serve as an “acting” commissioner). If she criticizes the President enough, she can spin to a ferociously anti-Trump press that any effort to replace her is an effort to silence the hunt for truth. The problem is that there is actual work to do at the FEC. When Commissioner Weintraub engages in ad hominem public attacks on the lawyers representing parties before her agency, repeatedly criticizes the President on matters outside her jurisdiction — or worse, within it — speaks publicly about pending MURs, and announces in advance her views on issues she will have to vote on, it is a problem, not just for her and the Agency she represents, but for the American public.

Prof. Smith detailed Weintraub's recent partisan excesses: how she used her FEC position and FEC resources to engage in partisan activity, namely criticizing President Trump; how she is engaged in a constant campaign of personal attacks against former FEC Commissioner and current White House Counsel Don McGahn; and how she seeks to expand the FEC's -- and therefore her -- jurisdiction to every aspect of federal elections.  Further, Prof. Smith details how just a few weeks ago, Weintraub's public comments may have jeopardized her impartiality on any matter regarding President Trump and his re-election and violated restrictions on FEC employees:

But Weintraub has pressed further. Also on May 23, she called for an investigation of whether Russian agents paid for Facebook ads designed to help then-candidate Trump in the 2016 campaign. Notably, given her criticisms of the President on voter fraud, she offered no evidence to support her allegation that “there is potential there for finding a violation.” More importantly, Weintraub again revealed her bias. Having made the allegation, Weintraub attempted to cover her tracks by adding, “I don’t want to suggest that I have prejudged anything that could potentially come before me.” . . . First, would any impartial observer take seriously her claim that she has not “prejudged anything,” particularly in light of her repeated rants against the President? . . . Second, even if one takes Commissioner Weintraub at her word, the first vote that the FEC takes on any enforcement matter is whether to open an investigation, which is based on whether there is “reason to believe” that an investigation is warranted. Weintraub has already publicly commented on precisely that question. . . . Finally, Weintraub may have violated the legal restrictions on FEC employees commenting on pending investigations.

We will continue to follow Commissioner Weintraub's partisan excesses and hope that she resigns soon so that a commissioner who takes his or her position at the FEC seriously can be appointed to replace her.

Highlights from Federalist Society Student Symposium Panel on Campaign Finance and Free Speech

Here are highlights of The Federalist Society’s second panel of the 2017 National Student Symposium at Columbia Law School. The topic of the Symposium was "The First Amendment in Contemporary Society" and it was held March 3-4, 2017.

This panel covered recent Supreme Court cases, including the much-discussed Citizens United decision, that struck down many campaign regulations on the grounds that they infringe upon individuals' First Amendment rights. The panel, consisting of well-versed law professors, weighed in on whether decisions like Citizens United are correct as a matter of law and if they are desirable from a policy perspective.

Panelists:

- Prof. Brad Smith, Josiah H. Blackmore II/Shirley M. Nault Professor of Law, Capital University Law School; Former FEC Commissioner 

- Prof. Richard Pildes, Sudler Family Professor of Constitutional Law, New York University School of Law 

- Prof. John O. McGinnis, George C. Dix Professor in Constitutional Law, Northwestern University School of Law 

- Prof. Ciara Torres-Spelliscy, Fellow, Brennan Center for Justice; Associate Professor of Law, Stetson University College of Law 

- Moderator: Hon. Richard J. Sullivan, U.S. District Judge for the Southern District of New York

Selected Quotes:

“A corporation that is a publisher could be prohibited from selling a book?” - Bradley A. Smith, quoting a question posed by Justice Alito to Malcolm Stewart. Stewart said that yes, that it would be applied to a book. 

“Suppose a sign was held up in Lafayette Park saying vote for so-and-so. Under your theory of the Constitution the prohibition of that sign would be constitutional?” Bradley A. Smith quoting Justice Roberts' questioning during oral argument of Malcolm Stewart. “Noting that of course you could form a PAC, otherwise the answer would be yes…That is the case of Citizens United.” - Bradley A. Smith 

“Four judges on the United States Supreme Court say that the United States Government can ban a documentary movie about a political candidate in an election year if at any point in the process of production or distribution or sales there is a corporation involved. As there always is. As there has been in every movie you’ve ever seen in your whole life except for home movies. And that’s Citizen United.” - Bradley A. Smith 

“The requirement of [a neutral judiciary] seems to me to have a special residence in campaign finance law for 3 reasons. First, campaign finance decisions can change electoral outcomes and thus shape substantive results across the entire legislative policy space. Thus, if the Supreme Court does not apply neutral principles it permits speech to be silenced in a  way that may fundamentally distort politics. Second, the First Amendment is premised on a view that the government can’t be trusted with decisions about speech. But judges themselves are government officials thus the more a constitutional provision reflects an economy of distrust the more it requires the strict application of mutual principles to promote strict fidelity to the law. And [finally] judges aren’t just any government officials, they are appointed by politicians. . . .” – John McGinnis

The entire panel was an interesting discussion of how campaign finance regulation and First Amendment free speech interests intersect and conflict. 

By RNLA Law Clerk Daniel Boatright

Would the Far Left Required Disclosure for the NAACP in the 40s and 50s?

Former Federal Election Commission (FEC) Chair, Professor and RNLA Member Brad Smith has an excellent article tearing down the house of cards that is the argument for the IRS regulation of politics.  Smith points out that really this effort to so involve the IRS is an end run around the bipartisan FEC and is based on three myths. 

Myth No. 1: 501(c)(4)s are "charities," and doing political work abuses their charitable status. The tax code contains at least 30 different categories of nonprofits. What we think of as "charities" are typically organized under Section 501(c)(3). That section exists for "charitable" and "religious" organizations, and it is where one finds organizations such as churches, the Red Cross, the American Cancer Society and so on. Section 501(c)(4) is traditionally reserved for advocacy organizations. The National Rifle Association, the Sierra Club, Planned Parenthood Action Fund, and the Brady Campaign to Prevent Gun Violence are 501(c)(4)s.

Myth No. 2: 501(c)(4)s must be operated "exclusively for the promotion of social welfare," not politics. While Section 501(c)(3) of the tax code specifically bars those organizations from engaging in political activity, no such statutory prohibition exists in Section 501(c)(4). Furthermore, while Section 501(c)(4) states that it applies to organizations operating exclusively for the promotion of "social welfare," the statute does not define "social welfare." Since when, in a democratic society, are nonpartisan get-out-the-vote drives, voter registration, voter education, and meet-the-candidates nights—all of which will be limited by the IRS's proposed rules—not activities in support of social welfare?. . . 

Myth No. 3: Political activities shouldn't get tax breaks. There are no tax breaks for 501(c)(4) groups. Contributions to these organizations are not tax deductible, and the tax liability of the 501(c)(4)s wouldn't change if they were reclassified as political committees.

What is this really about?  It is about stopping the speech of right-of-center and conservative groups, more of which now exist than the left could ever imagine when the laws were established. 

What the left wants is the disclosure of private information about conservative donors. In cases involving unions, the NAACP and other civil-rights organizations in the 1940s, '50s and '60s, the Supreme Court made clear that people have a right to engage in anonymous political activity.

Can you imagine what the Democrat Party of the 1940s and 50s in the South would have done to donors to the NAACP and other civil rights groups to defend their power and Jim Crow laws?  The effort to chill free speech should frighten everyone, including those on the far left.  

RNLA Spotlight: Former FEC Commissioner to Speak at National Election Law Seminar

Brad Smith is the Chairman and Co-Founder of the Center for Competitive Politics. Brad served as a Commissioner on the Federal Election Commission and is considered one of the nation’s foremost experts on campaign finance law.  We are excited to announce that Brad will be speaking at the RNLA National Election Law Seminar on August 9^th and 10^th in Chicago, Illinois. 

A recent New York Times story refers to Mr. Smith as the “intellectual powerhouse” of the movement to roll back campaign finance restrictions and talks about how he had to be personally persuaded by Senator Mitch McConnell to be a Commissioner on the Federal Election Commission.

In 2001 his book on Free Speech and Campaign Finance Unfree Speech: the Folly of Campaign Finance Reform, was lauded by George Will as the year’s “most important book on governance.”

Brad has been referred to as “the most sought after witness in Congress” on campaign finance issues, Additionally, he has authored over 40 articles on campaign finance reform, appearing in academic publications such as the Yale Law Journal and Georgetown Law Journal, and popular publications such as The Wall Street Journal, USA Today, and National Review. Further he has appeared on The O’Reilly Factor, Hardball with Chris Matthews, Bill Moyers Journal, the Lehrer News Hour, Fox News Special Report, ABC News, Washington Journal, and many other national and local television and radio programs.

When he was an FEC Commissioner, Mr. Smith was known for his integrity and refusal to put the political interests of party’s ahead of his duties to improve the election system. He is also known for his vehement support of free speech in America. For his honesty and integrity on the Commission, the Wall Street Journal affectionately dubbed him, “the only honorable man in this bordello.”

Currently Mr. Smith serves as the Josiah H. Blackmore II/Shirley M. Nault Designated Professor of Law at Capital University Law School in Columbus, Ohio. He has been the recipient of numerous awards for his scholarship and teaching, and is a past member of the Advisory Committee to the American Bar Association’s Standing Committee on Election Law. He also serves on the Editorial Board of the Election Law Journal, and the Editorial Advisory Board of the Harvard Journal of Law and Public Policy. Smith also serves on the Board of Trustees of the Buckeye Institute for Public Policy Studies, is a senior fellow at the Goldwater Institute and is a member of the Board of Scholars of the Mackinac Center for Public Policy. Smith is a cum laude graduate of Harvard Law School and Kalamazoo College and holds an honorary doctorate from Augustana College.

The Republican National Lawyers Association is extremely excited to have a legal scholar of Brad Smith’s magnitude speaking at our National Election Law Seminar. 

The Threat of Political Abuse in Campaign Finance Laws

Today RNLA Member, Top 100 Influential Lawyer and former FEC Chair Brad Smith testifies in front of the Senate Judiciary Committee, Subcommittee on Crime and Terrorism .  Smith makes many points in his testimony on campaign finance law but the one I will focus is:

Vague election laws combined with criminal penalties are a recipe for abusive political prosecutions. It is a threat both to the First Amendment and to honest government.

One example he gives is the 2006 election of Senator Ted Stevens.  Stevens' election loss (along with the fraudulent Montana election where the Democrat Governor bragged about stealing it) gave control of the Senate to the Democrat party for the last two years of the Bush Administration.   This effectively changed the political landscape for President Bush's last two years.   As Smith writes:

Other recent high profile political prosecutions for vague allegations of campaign finance laws have similarly come apart at the seams, as in the prosecution of Ted Stevens. Unfortunately, far too often the damage is done by the time the law catches up to the hysteria.  Stevens was convicted just days before the election, which he lost by less than 1% of the vote, and only vindicated posthumously after a plane crash.

And unfortunately all too often  the solution to problems in the so-called "reform" community is more regulation by more agencies thus making it more difficult.  Smith focuses on the IRS as an example.   

Similarly, in the last year alone, the IRS has illegally disclosed confidential tax return information of politically sensitive non-profit groups on at least three occasions involving an unknown number of organizations. As a result, last month a large and bipartisan group of prominent non-profit attorneys sent a strongly worded letter warning of the consequences of such disclosures.

While Smith is cautious in what he says, I have no doubt that in some of those cases that disclosure was intentional to hurt the efforts of conservative leaning social welfare groups.   But Smith is correct in his conclusion that there is an inherent danger in having agencies other than the FEC handle political speech. 

The other agencies simply do not have the expertise or agency culture to enforce such laws. Enforcement of such complex law is difficult, and Congress should not attempt to create new enforcement agencies or give existing agencies new powers that would stray from their mission.

Hopefully the Senate will listen to Mr. Smith’s sage advice today.