Providence Journal: Brad Smith: Whitehouse measure assaults constitutional rights (In the News)

By Brad Smith
The year is 2019. The government sends in a SWAT team to seize any corporate property it wants without the due process or just compensation required by the Fifth Amendment to the Constitution. The government also has the power to swipe bank assets, raid newspaper offices without warrants or just cause, and even censor any news published by a media corporation.
No, it’s not the plot of a newly-unearthed Orwell novel. These tactics, and more, would be legal under an amendment to the U.S. Constitution cosponsored by Sen. Sheldon Whitehouse, D-R.I.
Whitehouse’s proposal, introduced this year by Montana Democrat Jon Tester, is a constitutional amendment that aims to strip rights from corporate entities…
Oddly enough, in the momentous Citizens United decision, not even the court’s dissenters ever mentioned the issue of “corporate personhood.” Why? Because they all understood that corporate personhood is a longstanding doctrine that is not controversial in law, and was not what the case was about…
Constitutional amendments such as that offered by Whitehouse will not pass in the next few years – but they indicate the general hostility to free speech that many senators have, and their willingness to silence speakers they don’t like.

Filed Under: Brad Smith, In the News, Published Articles

The Silliness of Jon Tester

Senator Jon Tester (D. Mont.) has introduced another constitutional amendment to strip rights from corporate entities. His amendment (S .J. Res. 20) would provide that “(1) The rights enumerated in this Constitution and other rights retained by the people shall be the rights of natural persons; (2) As used in this Constitution, the terms ‘people’, […]

Filed Under: Blog, Citizens United v. Federal Election Commission, Issues, Citizens United v. FEC, Constitutional Amendment, Corporate Personhood, Elizabeth Warren, Jon Tester, SJR 20, We The People Amendment

Washington Examiner: There’s no reason to be afraid of ‘dark money’ in politics (In the News)

By Bradley Smith
Under federal law, candidates, political parties and PACs (including “super PACs”) must disclose all donors who contribute more than $200. Sometimes, however, groups that exist for things other than promoting candidates will spend money on an election ad. Because many people support these groups for reasons other than political activity, they are not required to disclose information on financial supporters unless those people gave for the purpose of financing political ads. But the group making the expenditure must disclose its political spending in excess of $250.
Thus, “dark money” isn’t really “dark” – we know who spent it, and how much they spent. We just don’t know the name of every individual who gave money to that group or organization.
Despite the panic about “dark money,” the Center for Competitive Politics, using data compiled by the Center for Responsive Politics (an organization that does much to pump up the “dark money” scare) and the Federal Election Commission, calculates that “dark money” was less than 4 percent of all federal political spending in the 2014 election cycle. While final numbers aren’t in yet for 2016, preliminary figures look like they will fall below 3 percent for 2016.

Filed Under: Brad Smith, In the News, Published Articles

New York Post: Democrats’ only idea for ‘draining the swamp’ is a proven failure (In the News)

By Brad Smith and Luke Wachob
Democratic proposals to “get money out of politics” have been tried for over 40 years, starting with the institution of campaign-contribution limits and donor-disclosure requirements via the Federal Election Campaign Act in the 1970s. It hasn’t gone as planned.
Notably, comparisons across states find no correlation between campaign-finance restrictions and public corruption, quality of governance or public trust in government. Given how dramatically these laws vary from state to state, this is startling. Eleven states allow individuals to donate any amount to candidates, while other states limit contributions to just a few hundred dollars.
Yet from the start, progressives have insisted on misreading Trump’s anti-corruption message as an endorsement of their failed policies…
Even if you support these policies, it’s silly to say they’re the only way to change the culture of Washington. When Trump says “drain the swamp,” only progressives hear “force nonprofits to disclose their donors” or “add more regulation of political participation.”
For Trump voters, extensive regulation, massive bureaucracy and “the swamp” go hand in hand.

Filed Under: Brad Smith, In the News, Luke Wachob, Published Articles

Were efforts to sway Electoral College illegal under FECA? Could be.

The six weeks since the presidential election have seen a new phenomenon: liberals, progressives, and Democrats, and a handful of anti-Trump Republicans engaged in a series of wild efforts to convince Republican members of the Electoral College not to vote for Donald Trump, as pledged. There have been death threats, lesser threats, harassment, and sincere […]

Filed Under: Blog, Carolyn Hunter, Donald Trump, Electoral College, FEC, FECA, Hamilton electors, Hillary Clinton, john podesta, Lawrence Lessig, Lee Goodman, Matthew Petersen, Moral Electors, Unite for America

Washington Examiner: Why we have to keep the Electoral College (In the News)

By Brad Smith
In a country as large and diverse as the United States, a system that forces candidates to campaign away from the people who already control the nation’s financial, cultural and governmental hubs is a good thing. The Electoral College forces candidates to build broad-based coalitions that cover the country.
Our constitution is full of anti-majoritarian provisions. The Bill of Rights places limits on what popular majorities can do through government. Texas has more people than the six New England states combined, but federalism prevents Texans from imposing their tax and spending priorities on New England states. It’s hard to imagine this country holding together if pure majoritarianism was the basis of power.
The Electoral College does not assure that the president will have received the most popular votes, but it does assure that the president will have won with substantial popular support, and that his support will not be restricted to one region of the country or to a handful of coastal metropolises. This is ample reason to support a system that, in just five of 49 elections, has gone against the nominal popular vote winner.

Filed Under: Brad Smith, In the News, Published Articles

Washington Post: Don McGahn was one of the most principled members of the FEC (In the News)

By Bradley A. Smith
Federal Election Commissioner Ellen L. Weintraub’s attack on former FEC commissioner Donald F. McGahn was misleading [“A disquieting pick for White House counsel,” op-ed, Dec. 11]. Ms. Weintraub claimed Mr. McGahn said, “I’m not enforcing the law as Congress passed it. I plead guilty as charged.” However, the article containing that quote noted, “McGahn’s admission of ‘guilt,’ however, came with a catch: He argued that it wasn’t his job to enforce this law as Congress passed it. Instead, he said, the commission’s job was to enforce the law as it’s been upheld by the judicial branch of government.”
Mr. McGahn made an important and correct point: The Supreme Court has ruled that many campaign finance laws are unconstitutional. If Mr. McGahn had said he would “ignore decisions of the Supreme Court,” he would face just and vociferous criticism.

Filed Under: Brad Smith, In the News, Published Articles

Social Science Research Network: The Academy, Campaign Finance, and Free Speech under Fire (In the News)

By Bradley A. Smith
This short essay, part of a symposium on “Free Speech Under Fire” at Brooklyn Law School, argues that academic efforts to fit campaign finance restrictions within the rubric of the First Amendment have distorted First Amendment doctrine, and contributed to a decline in respect for free speech generally. The essay briefly reviews and critiques recent scholarship by Robert Post (“Citizens Divided”), Richard Hasen (“Plutocrats United”), Larry Lessig, and Zephyr Teachout.

Filed Under: Brad Smith, In the News, Published Articles

Washington Examiner: Kill the ‘money buys elections’ cliche (In the News)

By Bradley Smith
Consider that Hillary Clinton’s campaign outspent Trump by more than two-to-one. Pro-Clinton ads outnumbered pro-Trump ads by three-to-one. Independent groups (the “super PACs”) supporting Clinton outspent independent groups supporting Trump by three-to-one. The average contribution to Trump was smaller than the average contribution to Clinton. And on and on it goes.
We’re told by campaign finance “reformers” that we must restrict spending in politics so that “people” can have their voices heard. But voters in 2016 ultimately chose the candidate without even a “real” super PAC to speak of.
This tells us two things: First, that money is simply the facilitator by which candidates speak to voters, but that voters will make up their own minds. Second, it shows us that money simply can’t make up for a message that people aren’t interested in. After his defeat, the man in charge of Jeb Bush’s $100 million super PAC remarked of the voters: “They just weren’t buying what we were selling.”
Let’s hope the same goes for tired tropes on money in politics.

Filed Under: Brad Smith, In the News, Published Articles

Washington Post: What Hamilton teaches us about the importance of anonymous speech (In the News)

By Bradley Smith
Anonymous speech was a frequent feature of Hamilton’s life – and of the American founding overall. Arguably the single most influential piece leading to American independence was signed simply “Common Sense,” Thomas Paine’s pen name. Just over a decade later, Hamilton, James Madison and John Jay co-wrote the Federalist Papers as “Publius.”…
The bottom line is that it is highly probable that the United States would not even exist without anonymous speech. Sadly, we have forgotten this lesson somewhere in the intervening years. Today, anonymous speech is too often demonized, derided as “dark,” or otherwise dismissed for its lack of “transparency.”
Although there are many examples, the brunt of these attacks centers on the anonymous speech used by nonprofit organizations on both the right and the left. These groups reach out to the public with messages on a wide number of issues, and they can be supported by individuals, corporations, unions and more. The nationwide campaign against anonymous speech is, by and large, a campaign to force these supporters’ identities into the open.

Filed Under: Brad Smith, In the News, Published Articles