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Bradley Smith

Bradley Smith, a Republican, was chairman of the Federal Election Commission from 2004 to 2005 (he was appointed to the Commission as a Republican appointee by President Bill Clinton in 2000). He authored an anti-campaign-finance reform book, titled Unfree Speech: The Folly of Campaign Finance Reform, is a professor of law at Capital University in Columbus, Ohio, and is an attorney at Vorys, Sater, Seymour & Pease LLP.

Sara Fritz interviewed Smith on January 4, 2008.

Tell me first a little about you. How did a professor of law at Capital University get involved in political campaign law?

How did I get involved in it? We’ll go back to when I was in law school. I wrote my upper-level paper that most folks have to write [on] the rights of political parties, minor political parties, in fact. [Civil rights activist] Chris Edley was my adviser on it. Afterward I took some of his suggestions and made some changes to it and circulated it around and I got it published. So a year or so later I started teaching. They said, “We’d like you to teach civil procedure and we’d like you to teach a seminar.” I said, “What is the seminar on?” They said, “Whatever you want.” I said, “OK, the one piece I published in an academic journal is on political rights, so how about I teach election law?” I was interested in politics and law. So that’s basically how that started. Once you start doing that, you start thinking of things or you see things as you’re teaching and you start writing on things.

In terms of getting into more politics, then, I wrote a little op-ed on the McIntyre v. Ohio Election Commission case, which you may or may not be familiar with. It’s a woman [Margaret McIntyre] who spent about $110 to print up some flyers opposing a school millage and had not put a disclaimer on them and had been prosecuted under Ohio law. That was seen by David Boaz at the Cato Institute. He asked if I would write them a longer piece. So I was in the process at that point of working on a longer piece on campaign finance, the piece that ultimately became my Yale Law Journal piece. I said, “Yeah, I’ll do something.” I wrote them a longer study and they circulated that widely around the Hill. So pretty soon I’m getting invited to testify and that’s how I got to know the Republican congressional leadership, which as you know from the FEC processes, is how you get appointed when your party doesn’t control the White House.

I would kind of laugh. One person once said to me, “You were actually sort of the merit appointee.” I really had no political tie. I’d never represented a campaign or a party. I was known a little bit around Columbus. If something was active, I’d pen an op-ed now and then for the Columbus Dispatch and things like that. I’d speak to the Young Republicans or something, but it truly was just something that kind of came about in that way, based on stuff I’ve written and testified.

It’s interesting but it’s a frustrating topic to take on as a life’s work, I suspect. In your book you call it “folly,” the effort to regulate this system. What do you mean?

I guess I think it’s that. I think it’s a mistake to try to regulate politics in a way that we had tried to do.

Any regulation?

Almost any regulation. In the mega sense, I’d say, this is all down in [James] Madison’s “Tenth Federalist.” He expounds on all sorts of stuff. If you really wander a spell, you can pretty much find it there. He says you have to worry about special-interest groups, you have to worry about factions. How do we control them? Well, there are two ways we can do it. One way is we can restrict the liberty that gives birth to faction. That’s a terrible way to do it. The other thing that we can do is we can try to structure a government in such a way as to get positive interaction out of that, minimize the negative.

It seems to me that what we’ve done over the last 60 or 70 years is we have kicked away all the various restraints on rent-seeking and special interests in Washington. Administrative agencies now blend judicial and administrative and executive powers. We’ve kind of cut into the separation of powers. We’ve cut into notions of federalism under the Commerce Clause. The federal government can pretty much do whatever it wants under the spending clause. We’ve cut into, I think, the doctrine of enumerated powers. We’ve decided that economic legislation, we’re not going to really have the courts look at very closely, opening things up to rent-seeking.

I don’t know, Sara, how much you know in some of this history, but if you go back to the first case, the [United States v.] Carolene Products case where the Supreme Court first held that it would apply only a rational basis [test] to economic regulations opposed to regulation of other rights. That case is egregious special-interest legislation. If you look at the press accounts from the day, everybody knew it. The appeals that were made to pass the legislation and so on, in addition to sort of basic special interests made quietly, but to the public were openly racist appeals. “We can’t become like swarthy Filipinos who drink filled-milk products.” That’s what they were trying to limit on the market. It was rent-seeking. The court says, “Well, we’re not going to look at that very hard.” So we kind of undercut the props that the founders of our country gave us.

The structure was there to minimize this. I get it.

The structure was there to minimize it. We’ve undercut that structure. So as a result now, because we are frustrated by rent-seeking, we’re actually relying on exactly the approach that Madison said we should not do, which is to try to suppress the activity or regulate the activity.

One activity at a time.

The other sense in which it is folly might just be much more common sense usage. I think most of what we’ve done hasn’t worked and I think is unlikely to work very well.

Within the limits of campaign finance law, is there anything that you would do?

To this day, this is a hard question for me to answer, and maybe it’s because of my own level of intellectual integrity or something, or maybe just because I’m stupid. I don’t know which. I feel a little bit like, if it were just me, if you really want just my opinion, I don’t care. I’d let the folks take whatever they want. I don’t really care if they disclose it. I would maintain bribery laws on the books. The realities of politics and the realities of policy, there are cost benefit analyses on things. I agree that in many cases disclosure is less of a burden than some of the other things that we do. I do agree that there are some benefits that come out of disclosure.

That is usually the middlemost approach, at least disclose it all. You would support that?

Even there I often hear people — and people who agree with me, generally — to show how tough they are, I always note that they almost always pound their fingers on the table. “We want every penny disclosed, instantly, on the Internet.” I’m like: “Whoa, wait a minute. We don’t need every penny disclosed and we don’t need to disclose instantly.” Those things burden small campaigns and volunteer groups the most. They can handle contribution limits, in the sense that it’s easy to understand. What they have trouble with is filing their reports and all that sort of thing.

There is an invasion of privacy element that is sometimes overlooked. Imagine if you’re a young guy and you give $250 to the Log Cabin Republicans. This goes on the web. You’ve sort of outed yourself. Anybody can see this. You may not want them to. My view is sort of, do we really need disclosure sometimes at levels where they’re set? That’s an issue. There are other things.

Let’s put it this way. I look at McCain-Feingold. One thing McCain-Feingold did was it limited the ability of officeholders to solicit soft money. If you really ask me, I don’t think that was a really good idea and I don’t think it’s worked all that well and I’d probably support its repeal. On the other hand, I do think there is a benefit that people don’t want to see pictures of their president sitting down at a table with a bunch of people he obviously doesn’t know from Adam because they gave his party a quarter of a million bucks or something like that. That’s unsettling to people. I understand that.

So when you ask that question, what would I favor, I guess my answer is, if it’s really just me and I’m the king of the universe and I don’t have to worry about other people, I don’t really think there should be any regulation, or at least very, very minimal. I think the benefits are not worth the cost. I think there are what we might call “gross benefits” to some regulation; I just think the benefits aren’t worth the cost. I am willing to compromise recognizing that other people feel differently. There are worse regulations and better regulations.

So it would be within the subject of disclosure? What I’m hearing you saying is disclose big contributions.

Yeah, I would agree at this point to disclose big contributions. Even there, I do try to point out to people that it’s not always as easy as we made it seem. People often are afraid of retaliation. For example, now that we’ve let government grow so big and now that it has so much power to distribute benefits and goodies, [it] therefore also [has the power] to punish people. A lot of times folks don’t want to; they can kind of be extorted. They feel that they have to give to be protected. To me, that’s the real evil of our campaign finance system. It’s not that politicians are corrupted by donors; it’s the donors are corrupted by politicians. Politicians kind of make them feel like they have to support these folks or they’re going to be whacked in the public policy system.

What about the current matching fund and public financing system? Do you think it’s ever going to be revived?

That’s an empirical prediction question. I’m not real good at those. I don’t know. I think if we get through an election or two without it, it probably will not. There were public financing systems in Minnesota and Wisconsin that are still in existence and nobody uses. They just kind of withered on the vine. Nobody takes them out. They could repeal them, but they don’t. I could definitely see that as one future. It is possible that Congress will decide to kick a lot more money into it.

People, to a large extent, don’t really like politics. They kind of like parts of it, but they don’t like a lot of other parts. They feel cynical about it and they’re cynical in their attitude toward politicians. So what you can always do is convince people that they’re unhappy. In other words, whatever happens in this election, it’s going to be easy to go to people and say, “You weren’t happy with this election, were you?” They’re going to say, “No.” “Well, I’ve got a solution. We need to fix the public funding system.” There may be no connection between what they’re unhappy about and the solution, but it’s always going to be that sort of an easy sell on a surface level. It may be revived in some form or another. That’s a long way of saying I don’t know.

I assume you would not favor that.

I think that there, again, can be some benefits to government financing of campaigns. There is some evidence that, at least in some circumstances, it can increase competitiveness in elections, that it can bring new candidates out, which might have some benefits. The problem for me is that people always seem to insist that we need to connect that with restrictions on giving. Absent that, I think it might be better.

The problem I always point out with government financing of campaigns is that it doesn’t really solve the issues. It doesn’t deal with Swift Boat Veterans or anything like that. Are we going to say people can’t speak outside of the campaign? That raises real constitutional problems. Is it even good policy? Do we really want to say that the politicians get to set the agenda? There’s an argument that that’s a good thing, but there’s also an argument that that’s a bad thing. If we the people want to talk about something else and the politicians seem to be implicitly agreeing they don’t want to talk about it, we need independent groups to come in and force that issue onto the agenda. You don’t do away with that problem. And still these people worry about undoing it and the folks can come in, raise the money for independent groups, and you still have the same equality concerns with spending money.

So I don’t see government financing solving a lot of the problems when people say, “Make everybody equal,” or “end corruption.” I don’t see that happening. I think a carefully designed program might be able to have some beneficial effects for other more limited goals, like fostering competition in some circumstances.

In fact, in this election now we’re seeing the independent expenditures mushrooming. You were at the FEC in 2004 when 527s first started to operate the way they are now doing it, although we’ve now gone beyond 527s. But tell me what you thought at the time, what you saw happening. Why was it that the end of soft money stimulated this?

It’s important to note that it was going on before. In fact, soft money itself was, in part, a response to the fact that the cost of campaign tends to rise with income, not inflation. So by definition it rises faster than inflation. The limits had always been held so they weren’t even going up with inflation. So people needed another source of money. It blossomed after. Once we said political parties can’t raise the large contributions, that did take a source of funding, a supply of funding, out of the system. People said, “What are other ways that money can in fact get into the system?”

You could use both demand side and supply side. The folks who wanted to elect people, the demand side, the politicians, the parties, the activists were looking for other ways, “How do I get more money in?” But there was also supply side, that is wealthy people like George Soros and [T.] Boone Pickens and stuff saying: “I want to influence this election. I want to influence who votes. I want to speak out on some issues.” So from both sides you had the folks looking for a way to do it.

Isn’t it peculiar, though, that George Soros could have done this before?

That’s right. A lot of people were just giving money to the political parties instead.

They didn’t really think it through, in other words. They were just responding to requests.

Yeah, it was an easier way to do it at the time. Certainly it’s not fair to put all the growth of these at the foot of McCain-Feingold. I do think that exacerbates the problem by cutting off, but I think some of it is just there has been, in the last six years or so, a tremendous amount of partisan energy. Not through society, but on the partisans, people are just crazy right now. They’re spending huge sums. I don’t know George Soros’s history, maybe you can tell me, his giving history. I don’t think he’d been a really big political giver, prior to this.

No, he wasn’t.

So in this sense, he just came along and became a vehicle to use. That reflects, like I say, that sort of increased partisanship. Soros, I think, in the early ‘90s, it seems to me people thought of him as sort of a vaguely liberal internationalist Republican, wasn’t he? I don’t know. He just really didn’t like [George W.] Bush and decided to do something about it.

Just like the fellow from Texas, the home-builder.

Bob Perry.

He also was pretty much a newcomer at this juncture.

Some of it was that McCain-Feingold, by shutting off the easy writing a check to the party, created both a supply and demand. Some of it was just, I think, that we’ve hit a stage where people are feeling like they just want to do this. We’ve become very partisan in the last few years and it’s making people do some things that I think are crazy.

The FEC decided to say, “If it’s for political purposes, you’ve got to disclose.” Now we’re finding that people have found other ways of doing it, 501(c)(3), (c)(4), and for-profit organizations.

It’s a little more complex than that. That’s basically right. In 2000, Congress actually passed a law requiring 527s to disclose their donors. The FEC basically got McCain-Feingold and it said we’re not going to pass a rule saying that everybody, just by virtue of being a 527, is a political committee. You still have to step over that express advocacy line, unless you’re doing electioneering communications.

The other thing the FEC did, and this has gone largely unnoticed, or at least unthanked by those who are for more vigorous enforcement, is the FEC, after McConnell v. FEC went back to interpreting the term “express advocacy” in a very aggressive way, that it previously had been found unconstitutional on many occasions. I think this is wrong. I don’t think McConnell stands for that at all. I think they could get slapped down again if anybody would ever challenge them, but so far everybody has been willing to pay the penalties. So what you have is the FEC has been much more aggressively enforcing the law against 527s and that’s led people to burrow sort of even deeper into the system into these other things that you talked about, using 501(c)(3)s and (4)s.

But you weren’t there for the follow-up. You were there when they announced that they were just going to look at this case-by-case. All of these fines and cases came after you?

Yes, this came after. In my view, most of them are based on incorrect reading of the law and of the regulation that we passed in 2004.

Tell me why.

What the FEC, like I say, is doing again is using a very expansive definition of “express advocacy.” Their idea is that McConnell v. FEC said that there’s not really a functional difference between the two. You can regulate more than just sort of express advocacy. But McConnell said that in the context of a specific statute that was being challenged for vagueness and overbreadth and that had specific provisions. In other words, McConnell said that in a sense of saying, “You can have this ban on any ad that mentions a candidate within 60 days of an election because we don’t think it’s overly broad, we don’t think it covers too much activity that should be protected, and we don’t think it’s vague.”

It’s not vague, of course. To name a candidate in 60 days, that’s really easy. The court did not say that otherwise vagueness is no longer an issue. Remember, that’s why express advocacy was the standard in the first place, because the Supreme Court had said you can’t have a vague statute. The FEC had said, outside of 60 days, we don’t care if it’s vague anymore. The Supreme Court has given us a green light. I don’t think the Supreme Court has. I just think nobody has yet challenged the FEC on it. I think they still have those vagueness problems and if they go to court, we’ll have trouble with it.

Wouldn’t you say that their interpretation of [FEC v. ] Wisconsin Right to Life has really made things frenetic?

I think it would be indicative of the fact that that case goes up there. Right now I do think that you see a lot of people, lawyers, who do not like the current level of regulation that are, I don’t want to say racing to the courthouse or anything, but people are sitting here thinking this is a good time to bring a case or this is a case to get up to the court. You see that in a challenge, Wisconsin Right to Life, that was clearly aimed at testing the law. There’s nothing wrong with that. Some guys always crack me up. They say, “Oh, this was set up to try to challenge the law.” Well, yeah, but so was Brown v. Board of Education and so was Rosa Parks and stuff. That’s how you do things.

I’m not quite sure how you view their response a month or so ago when they issued the interpretation.

The new rules in Wisconsin Right to Life?

Right.

My own preference would have been not to have them issue any rule. I thought this even when I was on the FEC, and I think it’s continued to grow. The FEC is making too many rules and people can’t get adjusted to things. There’s much to be said for a common-law, case-by-case method of adjudication. Rules give you definiteness but only if you’re not changing them all the time. If you’re changing them all the time, then they’re more indefinite than if you go case-by-case. One day everything is changed. That’s sort of the issue. I think they should have just let cases develop rather than try to come up with a rule. They were in a tough situation, though, because the court decision is not really clear on just how far it will protect.

I expected them to do some examples and I think a lot of people did.

I think they decided the problem with examples is they’re either so easy that it’s not controversial or they’re so hard that, “do you really want to do this now, you don’t actually have people briefing the case for you.” It’s the same reason courts in our system don’t issue advisory opinions where they have to have an actual case or controversy. They want a full brief where people will really argue the case. If you’re sitting there doing a rule-making or whatever, maybe that’s not always the best way to start listing particular examples of, “Here’s how we would rule if we had this example.” There will always be some fact that is different, some fact that you didn’t quite account for that’s incomplete in your hypothetical. I think that was the thinking.

I’m blanking right now on the case, the crazy one where the guy was accused of beating his wife.

Bill Yellowtail. [Democrat Bill Yellowtail, a 1996 candidate for the U.S. Congress from Montana, was attacked in an ad by a group called Citizens for Reform.]

Yeah, Yellowtail. Some people said, when the FEC put out these rules, that it would not eliminate the Bill Yellowtail ad.

That’s a $64,000 question there, Sara. I actually tend to be more conservative than a lot of other lawyers on this. Maybe it’s because I’ve been on the commission and I’ve seen it from that. I think it would still prohibit the Bill Yellowtail ad. I think that ad is still prohibited. But I can see the argument that it is not.

Let’s talk about Ron Paul Blimp. How did you get involved in that?

Remember that Liberty Political Advertising is a private company that is operating the blimp. They are a paying client of mine, through my private legal practice at Vorys, Sater, Seymour & Pease. I’ll be somewhat limited in what I can or will say about this effort. I got involved in that because they called me up and they said, “We need legal assistance.”

So it’s just an economic transaction?

That’s right.

So you’re not a backer of Congressman Paul’s?

No, in fact I’m on Mitt Romney’s Advisory Committee on the Constitution and the Courts.

Does this have any significance, do you think, this whole issue of blimp?

I’m not quite sure what you mean by that. I guess what I would say is, what the folks did with the blimp was they saw this tremendous enthusiasm for Ron Paul and people trying to figure out what they can do. Our system kind of makes it hard for people. They can give to candidates. A lot of people don’t want to do that. Some people will max out to the candidates and still want to do more but they don’t have the kind of money that would enable them to buy their own billboard or something like that. These guys saw, “Hey, there’s a way we can take advantage of that and make a buck and do some things that we think will help our cause,” sort of like Michael Moore did in doing Fahrenheit 9/11. He was very open; he wanted to help defeat George [W.] Bush and he wanted to make a buck. I think that’s basically the principle behind the Ron Paul Blimp.

Are you familiar with Citizens United’s request about whether they could advertise their anti-Hillary [Clinton] film?

Yeah, in general terms I’m familiar with it. I think they filed in court for a motion on that.

It went to the FEC for guidance. I may have missed the filing in court. What do you think about that issue?

What you see in this and in the blimp, again, is people coming up with creative new ways to do things. With the blimp, it’s a way to get lots of little people involved in some way and feel like they’re part of things. To me, it’s a really great thing. What’s great about it is it’s not like a nasty, negative attack ad or anything. It’s people who just have tremendous enthusiasm. Citizens United goes in another direction.

What some people don’t know, you may or may not know, is in 2004, Citizens United had put out a documentary called Celsius [41.11]. It was like a rejoinder to [Fahrenheit] 9/11. They asked if they could distribute that. The FEC said no. I was there at the time. I even agreed. I said, “I don’t think you can.” I remember I wrote a separate opinion saying, “In my view, I think you ought to be able to, but given where the courts are right now, I don’t think they’re going to say you can and I don’t think we should push it.” Part of the rationale was this doesn’t really look like a documentary in the sense that you don’t normally make documentaries and you’re going to pay to distribute rather than being paid to get it and that sort of thing.

So Citizens United basically just said: “All right. You say we got to be filmmakers, we’ve got to show this is part of what we do. We’ll show you.” They’ve made five or six documentaries in the last four years. They have one that won some awards at some film festival. So now they’re saying: “OK, you told us if we were in the business of producing films we could do this and we could advertise it. We’re in the business of producing films and we’re doing this.” That’s their approach. Again, it shows how lines are just blurring. People are coming up with creative ways to do things as the idea of media as we used to think about it breaks down. You don’t need a major studio.

The weird thing about this is they could have just done this. Why they’ve decided to seek guidance on it, they’re begging for somebody to rule on them.

I think two things. I think first it’s not clear that they could have just done this. Remember, of course, their advisory opinion four years ago, they were told they can’t do it. Now they want to say that their situation has changed.

What I remember is they challenged Michael Moore and he withdrew his ads.

Somebody probably complained against Michael Moore. They may have been the ones. We had a bunch of complaints against Michael Moore. They were dismissed on varying grounds. I think when it came to the ads, the electioneering communications, running ads within 60 days, he just withdrew the ads. Then we had other complaints so we mooted it. He’d never even run the ads. Then we had other complaints that were based on the movie itself where we found that it was eligible as sort of a business venture exemption. Of course, that’s the idea that people are now picking up on, too. “So you mean if I’m making a buck, I can talk about politics.”

What you’re seeing is a lot of creativity out there.

There’s a tremendous amount of creativity. Again, much of it is made possible by technology. The idea of a press being three networks and some local stations and newspapers, big newspapers that cost a lot of money to get into the business, is kind of gone. Anybody can print up little newsletters and stuff. Anybody can get on the web. People can produce really good ads and put them on the web or DVDs they can circulate through the mail. Things become within the reach of average people. The system can’t really keep up with that. You have things built around little players, like Ron Paul Blimp, but you also have things built around big players like Citizens United. They’re not a big corporation, but they’re a fairly big player that says, “Hey, here’s something we can do that would be fun.”

So if the FEC ever were staffed with enough commissioners, how do you think they would deal with all of these new tests?

It’s almost anybody’s guess at this point. It’s dependent on who the commissioners are. I think they’re in a very, very difficult position. Historically, the FEC almost always starts by trying to kind of fit things into a box they know. This is what most people do. So the first thing they do is they try to compare it to something they’re familiar with. I do think in recent years the commission has grown much more flexible in trying to say: “Yes, this technology is new. Let’s see if we can accommodate it in some way.” It runs to all kinds of things, not just big things like ways of participating, like doing movies or something.

I remember we had an advisory opinion, when I was at the FEC, where people were going to sell text messaging services that would give you news and sports updates and stuff. The idea was it would be like TV. In other words, you could get the paid service where you didn’t have any ads, but if you didn’t want to pay, you could get it free but you would get ads mixed in with your stuff. The question was, did you have to put disclaimers on those ads given that they are like little text messages to cell phones and stuff. In all kinds of ways, the system is sort of being challenged because it doesn’t quite fit.

This goes back to your original point that when you start to play, what’s that mole game?

Whack-a-Mole.

Every time somebody happens, you come up with a new regulation. Ultimately they get ahead of you.

That is a good analogy. It is a bit like Whack-a-Mole.

The regulation-by-regulation strategy is pretty difficult.

I think that’s largely correct. It kind of goes back to your initial question where I talked sort of about the idea of the folly. I think we’re in a system that just really can’t work. What we need to do is think more about how we want government, on a much bigger level, to be structured and what do we want it to do. One thing I’ve always kind of liked about the Center for Public Integrity is that, I have a lot of very different views from a lot of people that work there, but it always seems to me that Center for Public Integrity is more aware of these things. Your mission is more, not like, “Let’s regulate everything in sight,” but, “Let’s make people aware of what’s going on and let them decide.” I’ve always thought that that’s where people sometimes need to put more effort.

The reformers would say anything political ought to be regulated.

I think some of them would, yes.

That’s what they’re saying. Any entity that’s out there putting ads on television, if it’s a political ad, it ought to be . . .

The problem is the question of defining what’s a political ad.

Definitely they would have a broader definition of that.

And can you really do that consistent with our First Amendment, and is it really good to do so?

What about the FEC, you being a libertarian? Would you get rid of it, too?

Would I get rid of the FEC? Well, assuming that you’re going to change the laws in the way I would like, there would be some question as to whether you would need an FEC. To the extent you might have some disclosure left and things like that, they could probably be handled through another government agency or body. Having said that, I’ve always felt that as long as we have these kinds of laws, having them enforced through a bipartisan agency probably makes some sense because there is that concern about partisanship.

But it’s very tough to make such an agency work. Some people say, “Oh, it’s captured by the two parties.” You see some of these states that have independents and stuff and I don’t know that it really makes anything better or worse or different. The answer is I would probably get rid of the FEC, but that’s presuming that other reforms I would like to see also took place.

There seems to be generally — it used to be, maybe not so much nowadays — the sort of suggestion that this was a lack of will on the part of commissioners.

There are a couple things missing in that debate. One, of course, is some folks who want to push some really aggressive views say that. In the early ‘90s when they kind of controlled the commission, they were getting slapped around by the courts pretty well. The other thing that’s just overlooked is — and this is one reason why I think sort of a command control regulatory approach, as opposed to maybe a disclosure approach, is unlikely to work — there are due process realities in the world.

I sometimes tell people, “Walk through the complaint process with me.” Most Senate and congressional races aren’t going to rev up for another several months. Imagine a complaint that’s filed at the beginning of August, fairly early. Most people aren’t paying much attention to campaigns yet. So you file the complaint. Do you think the people should be allowed to respond? Do you think they should have a chance, a few days to do that? Once they respond, do you think the FEC should read the complaint? Do you think they should consider it? If it’s a complex legal defense, then probably some legal analysis has to go on. If it’s a factual issue, they’re going to have to depose people. They’re going to have to gather documents.

Then if they finally decide that somebody has in fact violated the law, again, do you think people should have a right to respond? Do you think there should be some kind of hearing on that? Suddenly you realize, “Yeah, realistically, it does take time.” You’re not going to get things resolved before the election is over. This is not a lack of enforcement willpower, or intentional delay, or the agency is notorious for its delay. I love when I read that now and then in the court opinion, from a court where it takes four years to get a decision.

To me, that’s just sort of the argument made by people who don’t want to accept that there is any legitimacy to the arguments made on the other side. If you presume that there’s no legitimacy to the arrogance made on the other side, then you can say they just don’t have the willpower. Even if you favor a lot of the regulation, if you recognize that there are legitimate due process and First Amendment concerns and so on, it becomes a lot tougher to make those kinds of claims.

You’ve made a good case to look at it more as a problem of not only due process but also just sort of how the issues are far too complex. It seems to me what you’re saying overall is you can’t lay down the rule and say, “This is OK and this is not.” Speech doesn’t work like that.

I think by and large that’s right. I’ll give you one more analogy. The mere fact that we still have robberies doesn’t mean we do away with laws against robbery or burglary. The odd difference there is those are not protected constitutional activities. Also, they’re not even good activities. Nobody says you should do that. In politics, we go around telling people: “You ought to be involved in politics. You should play a more active role in politics. Isn’t it great how public-spirited this person is?” Then we suddenly turn around and go after them with the force of law because they gave too much.

I hear people say, “Why would somebody give all that money?” Sometimes one of these guys who’s running for office himself, I hear folks joke about, “Why would you spend $1 million for a job that pays $100,000 a year?” Well, if the same guy gave $1 million to the opera, we would all say, “What a nice public-spirited citizen he is.” That’s how most of these folks are.

I think one of the unrecognized costs of the effort of the last 30 or 40 years to regulate is, to me, it seems the subliminal message we’re sending to people all the time is politics is bad and getting involved in politics is bad and you shouldn’t do it. There’s something a little bit seedy about anybody who’s giving money. That’s a bad message. I think it ultimately is a small but nonetheless contributing factor to declining voter turnout. I think it’s a small but contributing factor to the sort of negativity and pessimism about our political system now. I think there’s a cost to that.

I’ve often thought that is indeed the pitfall of being a journalist reporting on those kinds of activities, that there’s an implication that these people want to do something bad. It does add to the idea that politics is disreputable.

There are disreputable politicians, but I don’t think generally politics is disreputable.