Careful what you say

Bradley Smith says he's 42, but nobody wants to believe it without looking at a driver's license. Despite his boyish appearance, this soft-spoken Midwestern law professor scared the Washington establishment so much that they held up his appointment to the Federal Election Commission for 14 months.

That's because Mr. Smith promised to be a Washington oddity-a regulator who cherishes freedom. After sitting down last week for a Capitol Hill interview on conservative activist Paul Weyrich's TV show, Mr. Smith stood and paced as he explained to WORLD, "It's easy to lapse into the general attitude that more regulation is the norm, the proper thing to do. But I want to suggest, how about freedom being the norm?"

This Mr. Smith is as much at odds with Washington as the Jimmy Stewart movie character. As he works to bring restraint to the FEC, the U.S. Senate cleared the way to pass (after years of defeats) the McCain-Feingold bill, which would crack down on so-called "soft money" contributions and repeal the right of citizens to run ads mentioning politicians in the last 60 days of an election cycle. ("Soft money" is money raised and spent outside the regulatory structure for federal election campaigns.)

In this climate, Mr. Smith stands out like a sore thumb, making his case in a timely new book titled Unfree Speech: The Folly of Campaign Finance Reform. Against all the conventional media wisdom generated by Sen. McCain's losing presidential campaign, he argues that campaign finance regulations don't prevent corruption. They make political competitions less equal rather than more equal between incumbents and challengers, and unconstitutionally restrict the free-speech rights of American citizens.

But perhaps most importantly, Mr. Smith sees up close the way tough campaign regulations can discourage grass-roots involvement in politics. "I can't tell you the number of letters we get [at the FEC] where people write, 'I've learned my lesson. I'm never going to volunteer again.'" Mr. Smith recalled how a law school colleague told him he signed up to be a faculty adviser for a group of law students for Bush-Cheney. "'Don't spend more than $250, or you'll be required to file extensive reports to Washington,' I told him. That slowed down their activity a lot."

But the Senate last week moved full speed ahead to add yet another layer of campaign regulations, and despite proclamations of reformist idealism, the amendments look self-serving. Senators, for instance, voted to raise donation limits if they were forced to run against self-financing millionaire opponents. They voted to require that media outlets provide discounted TV time for campaign commercials. Some Republican leaders even voted for an amendment by liberal Sen. Paul Wellstone to include everyone, not just corporations and unions, in the 60-day ban on ads that mention politicians.

Moderate approaches, such as the alternative sponsored by Sen. Chuck Hagel of Nebraska, normally a staunch McCain ally, did not pass. Mr. Hagel's bill would have capped soft money contributions to political parties at $60,000 per election. It would have raised the limit on "hard money" contributions-which go directly to candidates-from $1,000 per election to $3,000. McCain foes (and quietly, the Bush White House) preferred the Hagel version, but the increased number of Democrats in the Senate is smoothing Mr. McCain's way.

Momentum now appears to be on Sen. John McCain's side, and that is a bit odd. In 1993 and 1994, with President Clinton in the White House and Democratic House and Senate majorities, campaign-finance proposals went nowhere. Now, with a Republican president and Republican control of the House and Senate, the first major revision of the campaign laws since 1974 is gaining steam.

The new momentum is also loaded with irony, since large soft money donations didn't become a major-league item until the Democrats started collecting them in 1986. (Democratic fundraisers serving Bill Clinton aggressively encouraged the doubling and tripling and quadrupling of soft money contributions.) Add to that the media mystique surrounding Mr. McCain's presidential run: If campaign reform was wildly popular, why didn't he win? But many in the news media continue to promote the clout of Mr. McCain and trade gossip of Bush-McCain feuding and a possible McCain rerun for president in 2004.

Mr. McCain didn't even stutter over the minor controversy that erupted over a supportive new television ad from a front group called "Americans for Reform." When House Minority Whip Tom DeLay attacked Mr. McCain for lending his Senate committee room to a soft money ad campaign to ban soft money, Mr. McCain released a statement: "Tom, take a deep breath and read the bill." The ad was supposedly OK because it came from a nonprofit group, not a corporation or union, but the passage of the Wellstone amendment the next day removed that defense. Spokesmen for Mr. McCain and Mr. Feingold, as well as Americans for Reform spokesman Howard Opinsky (a former McCain spokesman), refused to return WORLD's calls about the ad campaign.

Will President Bush try to make peace and move the debate back to his agenda by signing a version of McCain-Feingold? Bush aides told reporters the president was eager to sign a reform bill, but that might put him at odds with his own recently released list of campaign-finance principles, which clash with the increasingly restrictive Senate bill and a similar one moving through the House, which passed such a proposal last year.

If two branches of the federal government agree to subvert freedom of speech, the only roadblock remaining would be the courts, which have struck down attempts to ban political speech in the days leading up to an election. This became one of Mr. Hagel's arguments for his alternative. "We believe our campaign finance proposal would pass constitutional muster," he said. "What good does it do to pass legislation we know will be struck down by the courts?"

But some campaign finance experts have an answer. Election lawyer James Bopp of the James Madison Center said, "It's a win-win from their point of view. If it gets upheld, then they will have further protected themselves from citizen accountability. If it doesn't, at least The New York Times will say good things about them."

Mr. Bopp is another man who has seen up close the debilitating effect of many campaign regulations. He represented the Christian Coalition during its long probe by FEC attorneys, and said that was "the largest FEC attack against any group, and they won. It took seven years, involved 81 depositions and hundreds of thousands of documents, and they won. The problem is that being investigated costs a tremendous amount of money. The process is the punishment." Over the past few years, the coalition has lost high-profile staff and any impression of political clout.

Douglas Johnson of the National Right to Life Committee isn't seeing a hospitable future, either, for advocating the pro-life cause under a McCain-Feingold regime. "Let's imagine it's February 2002, and partial-birth abortion is coming up for a vote, and we want to run radio ads on a Christian station in Waco, Texas," Mr. Johnson explained to WORLD. "It would be unlawful to say 'call Congressman Chet Edwards to express your opinion.'" The reason: It would be primary election season in Texas, and lobbying groups wouldn't be able to solicit public pressure on legislators, even as they're voting. Recently, Congress has passed legislation in the last 60 days before an election cycle, and Mr. Johnson predicts that in a new, restrictive environment, the amount of last-minute legislation would increase.

Critics also see free-speech problems in the McCain-Feingold legislation's provision outlawing "coordinated activity" between interest groups and candidates. If the FEC believes a group has "coordinated" with a candidate for federal office on an issue, it could be illegal to communicate "anything of value ... in connection with a federal candidate's election." That could potentially include groups sending questionnaires asking for politicians' stands on the issues. If a politician sent the questionnaire back, it could be evidence of "coordination." Or if a pro-life group bought a newspaper ad opposing abortion, and a candidate in the area had cited opposition to abortion as one of his top issues, the ad could qualify as "coordination."

This is the nebulous territory that the FEC's Mr. Smith sees as potential quicksand for citizen activism. "It's very easy to allege coordination, but it's much harder to find definitive proof. That can lead to very extensive investigations." Mr. Smith believes campaign laws ought to require "substantial evidence of communication or negotiation"-including, for example, a specific request from a candidate for an interest group to run supportive commercials-instead of simply playing a game of ideological connect-the-dots.

The road to McCain-Feingold becoming law is still long and bumpy-from the struggle over House passage to the House-Senate conference committee to the White House to the courts. But supporters' hearts are light at the potential of heavy regulation to come.