Bradley Smith (law professor)

Bradley A. 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 is best known for his writing and activities opposing campaign finance regulation.

A Michigan native, Smith received a B.A. from Kalamazoo College and a J.D. from Harvard Law School in 1990. After briefly practicing law with the firm of Vorys, Sater, Seymour and Pease, Smith joined the faculty at Capital University Law School in Columbus, Ohio in the fall of 1993. Smith's breakthrough came in 1996, with the publication of his article "Faulty Assumptions and Undemocratic Consequences of Campaign Finance Reform" in the Yale Law Journal.

In "Faulty Assumptions", Smith laid out 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. "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. In 2010 The New York Times called Smith the "intellectual powerhouse" behind the movement to deregulate campaign finance. The importance of "Faulty Assumptions" lay in its blending of existing political science research with legal and constitutional theory. Before "Faulty Assumptions", most legal scholarship on campaign finance had followed a narrative that assumed the corruptive and anti-egalitarian effects of large campaign contributions and spending, and had then focused on the creating a legal regime to control those effects and justify regulation against First Amendment claims recognized by the Supreme Court in Buckley v. Valeo. At the same time, these articles largely ignored a growing literature in political science based on empirical studies of campaign spending and regulatory regimes. Smith's contribution was to bring these two arms of scholarship together, blending the growing body of empirical data to the constitutional and legal principles laid out elsewhere. The result was to challenge the very foundation of campaign finance reform in both politics and constitutional law. Smith's analysis forced proponents of reform to rethink many basic assumptions, or at least to justify them against his critique.

Smith followed "Faulty Assumptions" with a series of academic articles further developing and refining his approach, notably "Money Talks: Speech, Corruption, Equality and Campaign Finance", which appeared in the Georgetown Law Journal in 1997. "Money Talks" focuses on Constitutional principles of campaign finance regulation.

Smith also wrote Unfree Speech: The Folly of Campaign Finance Reform, a book published by the Princeton University Press in 2001. By the time Unfree Speech was published, both Smith and his campaign finance scholarship had become something of a Rorschach test for attitudes about campaign finance. The book met with near universal praise among opponents of regulation, such as columnist George Will, who called it "the Year's most important book on governance," and condemnation from supporters of regulation, with journalist Eliza Newlin Carney lambasting it as "facile and boggling." Scholars, including the British political scientist Michael Pinto-Duschinsky were more balanced and generally complimentary, but by the time of publication Smith had been appointed to the Federal Election Commission and the book was largely reviewed as a political tract, rather than as the scholarly manuscript Smith presumably intended.

Nevertheless, Unfree Speech is an important academic work. It sold well enough to trigger the release of a paperback version in 2003. More importantly, Unfree Speech paved the way for later works. Before Unfree Speech, most books on campaign finance focused on sources of campaign funding and the creation of ideal regulatory regimes. Unfree Speech was a forerunner for a number of scholarly books published in the early 2000s that were more skeptical of campaign finance reform and its underlying assumptions, including John Samples' "The Fallacy of Campaign Finance Reform," "Money, Power, and Elections" by Rodney Smith, Melvin Urofsky's "Money and Free Speech," and Ray LaRaja's "Small Change."

Smith's ability to write for a general audience soon attracted the attention of politicians and think tanks in Washington. Smith became a popular witness before congressional panels, both for his contrarian views and his ability to simplify complex issues for ease of consumption. Having gained the attention of Republican leaders in Congress, in 1999 then Senate Majority Leader Trent Lott, on the recommendation of Senator Mitch McConnell, sent Smith's name to the Clinton White House as the Republican choice to fill an upcoming Republican vacancy on the bipartisan Federal Election Commission, which oversees enforcement of federal campaign finance laws.

After a lengthy battle between Senate Republican leaders and the White House, Smith 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 on May 24, 2000. By this time, Smith had established himself as one of the leading experts on campaign finance in the United States, with his writings on campaign finance and election issues having appeared in noted academic publications in addition to the Yale Law Journal, including the University of Pennsylvania Law Review and the Harvard Journal of Legislation. 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.

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". His nomination, however, received support from supporters of deregulation of campaign finance, such as the Cato Institute.

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 favor Democratic Presidential candidate John Kerry. Smith's tenure was otherwise marked by efforts to reform the FEC's enforcement proceedings to provide greater due process rights for respondents, and a staunch stand against expansion of the law into uncharted areas. Smith also supported the creation of an Administrative Fines program and an Alternative Dispute Resolution Office at the FEC. As Commissioner, he maintained an active speaking schedule and continued to criticize campaign finance laws. 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."

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. Smith served as a Senior Fellow at the Goldwater Institute, a member of the Board of Scholars at the Mackinac Center for Public Policy, and a member of the Board of Trustees of the Buckeye Institute. 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.

He has remained an important figure in campaign finance debates. "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. In 2012 Commentary called him "the single most important voice in the fight to roll back restrictions on political speech." 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."