PLAYING HARDBALL WITH SOFT MONEY: Is Campaign Finance Reform Constitutional?

Wednesday, July 30, 2003

In March 2002, President Bush signed into law the Bipartisan Campaign Reform Act, better known as the McCain-Feingold Bill. The law bans political contributions known as "soft money"—that is, money from corporations, unions, and other organizations given to political parties for "party-building activities," thereby skirting campaign contribution limits. The Supreme Court has now taken up McCain-Feingold and will determine whether all or parts of the act will be upheld or overturned. Are soft money bans legal? Or do such campaign finance restrictions infringe on freedom of speech? Just how should the Court decide?

Recorded on Wednesday, July 30, 2003

Peter Robinson: Today on Uncommon Knowledge: should the Supreme Court go soft on soft money?

Announcer: Funding for this program is provided by the John M. Olin Foundation.

[Music]

Peter Robinson: Welcome to Uncommon Knowledge. I'm Peter Robinson. Our show today: campaign finance reform--is it constitutional?

In March 2002, President Bush signed into law the Bipartisan Campaign Reform Act, better known as the McCain-Feingold Bill. Among the bill's many provisions, a ban on soft money, that is, money contributed to political parties rather than to individual candidates, often used to skirt limits on campaign contributions. Also, a ban on political attack ads near an election date. These are ads that are run not by candidates, but by special interest groups. McCain-Feingold is now before the Supreme Court of the United States. What should the Court decide? Are bans on soft money constitutional? Or are restrictions on campaign finance contributions, restrictions on freedom of speech?

Joining us, two guests. Rick Hasen is a professor of law at Loyola Law School. Bradley Smith is a member of the Federal Elections Commission and the author of Unfree Speech: The Folly of Campaign Finance Reform.

Title: The Buck Shops Here

Peter Robinson: Political scientist Norman Orenstein, writing in Roll Call: "President Bush is the most active fundraiser in history, vastly out-distancing Bill Clinton in the success he's having in bringing in the bucks, which most experts now estimate can reach two hundred million or more," this is for the coming Presidential election cycle, "at least double what Bush raised in 2000, and perhaps quadruple what his opponents may have. Any way you look at it," says Norm Orenstein, "this is not healthy for the Presidential selection system." Big bucks, unhealthy for American politics. Rick?

Richard Hasen: Well, competition is always healthy for American politics. I don't think that it's surprising that President Bush can raise this much money, given that one of the things that the new campaign finance law does is it doubles the amount that candidates can...

Peter Robinson: You're happy with that?

Richard Hasen: I'm not happy with that, but that's not my biggest problem with the law.

Peter Robinson: All right. Save your problem, we'll come to it. Big bucks unhealthy, in and of themselves?

Bradley Smith: No, and this is a classic example of the average contribution to the Bush campaign is a couple hundred dollars. He's raising lots of money because lots of people support him, and that's what politics should be about.

Peter Robinson: Okay. 1974, the wake of Watergate, Congress passes I suppose we can say the first rigorous campaign finance reform laws of the post-war period. These laws are challenged in the 1976 Supreme Court case Buckley v. Vallejo, which Rick will now summarize.

Richard Hasen: Well, the Court said that all of the aspects of the law implicated First Amendment rights of speech and association but they said some aspects of the law were constitutional. For example, it's constitutional to limit contributions to candidates but it's not constitutional to limit the amount that someone wants to spend, independent of the candidate.

Peter Robinson: So the Court says, money is intertwined with political speech, right? And so, you can't regulate money without having some effect on the First Amendment right to free speech. But, then, although the Court--the First Amendment says, Congress may make no law abridging the freedom of speech, the Court said, well, yeah, you can make some laws. And on what grounds did it say that?

Richard Hasen: Well, it says, "make no law abridging the freedom of speech." So, it depends on what abridging means. That is, we allow for limits on...

Peter Robinson: We're twenty seconds into the show, and the lawyering has already begun. Go ahead.

Richard Hasen: We allow for limits on speech and association in a variety of contexts. We don't allow lawyers, for example, at a trial to speak as long as they want. There are rules of engagement. The same thing in the campaign finance context. The Court says that reasonable limits on contributions are allowed.

Peter Robinson: On what constitutional grounds? What is the value being protected?

Richard Hasen: Well, there's a First Amendment right to associate with the candidate but the Court said that right does not differ very much whether you give $100 contribution or $1,000 contribution; that that right to associate is protected. And, on the other side of the ledger, if you allow $1 million contributions, $5 million contributions, as we have started seeing in the soft money context which I'm sure we'll be discussing a little bit later on, then you raise questions not only about corruption, you raise questions about the appearance of corruption and democratic legitimacy, what does that do for American society when they see these large donations coming in. And they also raise questions that the Supreme Court's been avoiding but I think are important of political equality.

Peter Robinson: The decision was a bungle from beginning to end and the Court should simply have said, congress has no right to regulate political money. What do you think of that?

Bradley Smith: I think that's largely correct. I mean, I think...

Peter Robinson: You do?

Bradley Smith: I think Rick had correctly described the case but what we need to think about is where the First Amendment's now concerned. We now more heavily regulate political speech through campaign contributions and speaking and independent expenditures and so on, than we regulate pornography over the internet, than we regulate simulated child pornography, than we regulate flag burning, than we regulate...

Peter Robinson: You may burn a flag, but you may not give money to a candidate beyond a certain amount.

Bradley Smith: Right. You can dance topless, but you can't give more than a couple thousand dollars to a candidate. And I think somewhere we've gone haywire in our First Amendment priorities here.

Peter Robinson: Next topic: How the Supreme Court should approach McCain-Feingold.

Title: The High Cost of Free Speech

Peter Robinson: Give me the two or three issues that you consider the most important for the Supreme Court to judge--to decide.

Bradley Smith: I think really the most important issue is the sort of macro issue. The Court needs to decide at some point whether or not we're going to continue to allow regulation of core political speech. Already, the people who sponsor McCain-Feingold are saying it doesn't go far enough. We need more regulation. Already the drumbeats are out. People like Norman Orenstein, whom you quoted at the beginning are saying, it's corrupt! Now that George Bush is raising lots of money in small amounts. There's sort of no end to corruption. And in Buckley, the Court said, even the appearance of corruption is enough, without really defining what they meant by corruption. And, essentially, at some point, we need to decide how much speech we're going to regulate. Under McCain-Feingold, it is illegal--Rick talks about, you know, these big contributions are corrupting--under McCain-Feingold, it is illegal for a teenager, who earns some money mowing lawns or life guarding during the summer, to give his father $50 to support his running for Congress. What does that teach our young people about civic involvement?

Peter Robinson: So, Brad, you want the Court, if you had your druthers, if you were seated up there between Rehnquist and Sandra Day O'Connor, in conference, you would be urging them to make a radical ruling and to say the Court--what would the grounds be--the grounds would be something like, we now have 30 years of experience with campaign finance law, we now recognize that as a matter of empirical fact, you can't permit this body of law to continue growing because the encroachment on free speech is inevitable. We must strike it all down.

Bradley Smith: Right, except that I don't consider that a radical ruling at all. Several justices have held that over the years and I think it's a ruling that's very modestly in tune with the First Amendment again, which puts political speech at the core of our expression and says that you can't limit what some people speak in order to promote equality and, I think, also suggests that--well, we need to keep in mind that the vast majority of people who make political contributions do so because they believe in the candidate. They neither want nor expect anything in return.

Peter Robinson: Rick, what do you want the Court to do?

Richard Hasen: Well, I think the question is whether the Court is going to allow for effective campaign finance laws. What we have, now...

Peter Robinson: So, you would agree, though, with Brad then, that this is the Court's moment to make a basic decision. Either this body of law is permitted to continue to grow, or the Court says no.

Richard Hasen: Well, I think the Court has that opportunity, although the way the parties are briefing the case, they're trying to present it on both sides as an incremental decision. But, I think that, in fact, it could be a very large decision. But, what we're looking at now, especially over the last ten years, is the evisceration of the disclosure rules, the evisceration of the rules that say that corporations and unions can't make unlimited contributions, expenditures except for...

Peter Robinson: Evisceration, why? Because…

Richard Hasen: Because…

Peter Robinson: …not because the law has been repealed, but because...

Richard Hasen: Because the lower Courts have interpreted Buckley and some of the other cases to say that so long as you can avoid certain express words of advocacy--vote for Smith, vote against Jones--then there's no regulation. So, if IBM or the AFL-CIO wants to run an ad that says, call Jones and tell her she's soft on crime, that advertisement is not regulated.

Peter Robinson: On to what may seem a basic question: do we really know that money influences political decisions?

Title: Give and You Shall Receive

Peter Robinson: So far as I'm aware, whenever political scientists study the political system, they're unable to establish any systematic tie between sources of money and a particular senator or congressman's votes. There's no finding of fact. There's no proof that corruption exists.

Richard Hasen: It depends on, again, your definitions, here. It depends on what you mean by corruption. If what you're looking for is a connection between contributions that are given to candidates and roll call votes, that is the final vote in Congress, then you're going to have a hard time finding it. But, that's not how much legislation is made in Congress. It's the part of law that was left out. It's the rider that was put in at the last moment. It's tabling a bill. These are things that political scientists have a very difficult time measuring.

Peter Robinson: But you're asking me then as a dim associate justice, to vote in favor of a body of law that impinges on free speech on the basis of your say so. There's corruption only nobody can find it.

Richard Hasen: Well, I think it was Justice Souter in the Shrink Missouri case who came out and said, look, these ideas that large amounts of money can corrupt the political process are neither novel nor implausible. We don't have to close our eyes to the reality of how politics works...

Peter Robinson: Go ahead. Sure, sure.

Bradley Smith: Let's talk about the reality of politics. I'm sure that many of the people watching us today have made contributions to political candidates and they didn't do it because...

Richard Hasen: You think many did that? And what percentage of people make contributions to candidates?

Bradley Smith: Millions of people in this country make contributions. And here's the thing is, I don't think that those people who make those contributions do it because they expect anything in return. Now, wealthier people contribute more amounts. Wealthier people spend more money on travel, they spend more money on their housing, they spend more money on their cars, they spend more money on their political contributions. And by and large, they do it because they believe in the candidate and they think it's a good thing. Now it's not to say that there's not ever a case where a large contribution doesn't influence what an office holder does. But we vote at the polls on whether we like what an office holder does. And I want to finish with this point.

Peter Robinson: Go ahead.

Bradley Smith: What we're talking about restricting now--I mentioned the teenager giving to his father, parents giving to their children--if the Sierra Club--if in October of 2004, September, Congress is debating the budget and the Sierra Club wants to run ads urging people to call their congressman and urge him to support a bigger budget for the Environmental Protection Agency, that will be illegal under McCain-Feingold. So, I think we're just getting the system all mixed up and we're looking for corruption. We're limiting lots of non-corrupt speech, to get at these rare, unproven episodes of corruption.

Peter Robinson: Thought experiment: Let's assume that what Norm Orenstein suggests might happen, will happen. And that George W. Bush or some other unnamed Presidential candidate does raise $200 million, and that indeed his opponent, let's assume for the purposes of the thought experiment, it is indeed the Democratic nominee in 2004--Joe Lieberman or Howard Dean, or whoever it turns out to be--does indeed only raise $50 million. And you've got a Republican--the parties don't matter here--but, one candidate has $200 million and the other has $50 million. Does that not trouble you?

Bradley Smith: Sometimes money is an equalizer; sometimes it's not an equalizer. Let's put it down at a Congressional-level race where most races go on. One candidate is endorsed by the major newspapers and the reporters all like him, too, so he tends to get good coverage. Now, if the two candidates spend the same amount, is the race fair or is it unfair? It's probably unfair. Maybe it's more fair in that case if the candidate who's not endorsed by the paper and isn't liked by the reporters can raise and spend more money. So, money can be more fair, it can be less fair.

Peter Robinson: What about you? Is some rough equality a principle that you'd like to establish? Or does that not bother you?

Richard Hasen: Well, the kind of equality that I tend to favor is what I call a barometer notion of equality, which is that the amount of money that people take in roughly reflects their support in society. The problem with Bush is that he's…

Peter Robinson: How can you possibly measure that, though?

Richard Hasen: Well, the money is the measure, right. So, if everyone could, for example--different thought experiment…

Peter Robinson: All right, go ahead.

Richard Hasen: …no private money in politics. Everybody has $100 in campaign vouchers that they can give to...

Peter Robinson: Every citizen.

Richard Hasen: Every voter--can give to each individual member of Congress, or can split it up, can give it to Presidential candidates or the party--if we started out in that way, then how much money Candidate Bush would have or Candidate Dean would have would reflect...

Peter Robinson: Wouldn't that be redundant because you already give every voter one vote?

Richard Hasen: Right, but this way, if you have $100, you can spread your money around. If you think the environment is what matters, you can put all hundred of your votes on some pro-environment candidate or for some pro-environment group. That's not where the Supreme Court is going now.

Peter Robinson: No, but I'm just trying to tease out principles, here. That would...

Richard Hasen: Right. So, when Bush is raising the $200 million, it doesn't bother me the way it bothers some others in the reform community, in that he is raising it in relatively small chunks. It bothers me much less than when the Republican National Committee or the Democratic National Committee raises a million dollars...

Peter Robinson: But the result--if Bush ends up with two hundred million and his Democratic opponent only ends up with fifty million, does that bother you?

Richard Hasen: It does not bother me so long as the Democrat has the money to get a message out. That is the most important principle.

Peter Robinson: Let's go to one of the core provisions of McCain-Feingold, the ban on so-called soft money.

Title: Playing Hardball with Soft Money

Peter Robinson: Brad, distinguish for me the difference between soft money and hard money.

Bradley Smith: Simply put, soft money is unregulated money, and hard money is regulated money.

Peter Robinson: So this arises directly from Buckley v. Vallejo?

Bradley Smith: Right. Regulated money, hard money under Buckley v. Vallejo is basically money that is used to, as Rick mentioned earlier, expressly advocate the election or defeat of a candidate. To say things like vote for, support, defeat, that sort of thing.

Peter Robinson: And prior to McCain-Feingold, the cap on that was...

Bradley Smith: Well, there were a number of caps, but an individual could give $1,000 to a candidate, $20,000 to a political party, $25,000 a year total in contributions.

Peter Robinson: Okay, and McCain-Feingold raised those caps to?

Bradley Smith: Two thousand to a campaign from an individual, and then the contributions to the parties and to the total giving is very confusing. It goes over a two-year period with a certain amount to the party, it's very…

Peter Robinson: By the way, can I ask you--there's a moment during the 2000 when I happened to find myself in a room with, I think his first name is Ben, but his last name is certainly Ginsberg, and he was the campaign finance lawyer for the Bush campaign. And, I said to him, how many people in the entire country really have a working knowledge of the campaign finance laws? And Mr. Ginsberg thought very carefully and for quite a long time, and then he answered, fewer than a dozen. Is that really, in a democracy, the kind of legal and regulatory regime that you want to support and see perpetuated? Something so completely opaque that only six commissioners of the FEC and maybe a dozen other lawyers actually understand it?

Richard Hasen: No, I think that's very problematic, and I think simplicity is something that we can all agree upon. But, this is not just a disease of campaign finances, it's a disease of the way Washington passes laws in our bureaucratic state, that everything is complex and everything becomes a series of regulations.

Bradley Smith: We've landed on a very important point, which is this, really is hurting grass roots politics. For example, shortly after I joined the commission in the late summer of 2000, one of my former faculty colleagues--I was a law professor--called me up. He said, well some of the law students have started Law Students For Bush/Cheney. I'm going to be their faculty advisor. I said, now that's great. Make sure you don't spend more than $250 or you'll have to start filing reports with the Federal Election Commission. That pretty much kills that grass roots activity.

Peter Robinson: Back to this distinction, please, between soft money and hard money. So in hard money, McCain-Feingold raises the caps. In soft money, though, it really cracked down. Right? Tell me what McCain-Feingold says about soft money or unregulated money.

Richard Hasen: Well, it does a few different things. One thing it does is it limits the amount that parties can take in that could be spent on this kind of activity. Another thing that it does is it limits the ability of federal office holders to solicit money that would be used for other purposes. Another thing...

Peter Robinson: Other purposes than...

Richard Hasen: Than express advocacy.

Peter Robinson: Right.

Richard Hasen: And another thing it does is that it requires the corporations and unions that otherwise are limited in the express advocacy they can engage in, it closes up the loopholes to prevent them from making the same kind of advertisements and avoiding the words of expressed advocacy.

Peter Robinson: Okay, so here's--as far as I can tell, what we have in McCain-Feingold are adjustments to a kind of vast Rube Goldberg device. And so, there's almost a kind of--so far as I can tell what's going on is fundamentally an aesthetics response--John McCain and Feingold, Russell Feingold, I think the name is, Senator Feingold--just find what has happened in the last five years, six years, seven years, somehow, too much, distasteful.

Richard Hasen: It's not just cosmetics.

Peter Robinson: So we tamp it down here, and we--well what is the constitutional principle whereby you permit parties to raise money for this purpose, but not that purpose? Isn't running candidates a business of political parties?

Richard Hasen: Absolutely. And, you know, the question is, you know, do you want to make…

Peter Robinson: Principles. Dig out a principle.

Richard Hasen: Do you want to make it easy for sophisticated players to avoid the rules and capture only the grass roots people who are trying to engage in policy? I think what McCain-Feingold is trying to do is to prevent evasion.

Peter Robinson: And McCain-Feingold also bans, just explicitly bans so-called advocacy ads 60 days before an election.

Richard Hasen: This is what we're talking about. It doesn't ban those ads. It says that if you are a corporation or a union, then you must use a separate, segregated fund. And that if there are members of the corporation who feel differently, nothing prevents the CEO of that corporation from spending a million dollars on that kind of advertisement.

Peter Robinson: One last question. You're saying that McCain-Feingold is attempting to rein in the ability of the sophisticated players to achieve an unfair advantage. You've just set up more impediments to unsophisticated political players and set up hoops that only the most sophisticated...

Richard Hasen: Absolutely not! If you, as a private citizen, want to spend $10 million taking out an ad, supporting a candidate for Congress in the local newspaper, nothing's going to prevent you from doing that. All that you're going to have to do is to file a disclosure report explaining where the money came from and what you're spending it on.

Bradley Smith: But, you see, this is exactly--first of all, we're talking about corporations, and Rick mentions corporations. We need to realize we're talking about little, tiny incorporated civic groups, that they are limited, too.

Richard Hasen: Not all of those...

Bradley Smith: All of those groups are limited from making these kinds of expenditures.

Peter Robinson: Filing amicus briefs in opposition to McCain-Feingold before the Supreme Court, you have all kinds of entities, including the ACLU and the National Rifle Association.

Richard Hasen: And very interestingly, the National Rifle Association does not take issue with the idea that for-profit corporations can be limited to spending through a separate PAC. They only take issue with ideological groups being so limited. And I have a lot of sympathy with that, so long as the group is not being used as a conduit for a for-profit corporation or a labor union, I agree with Brad.

Bradley Smith: So Rick and I agree, it sounds like, that the electioneering provisions of the law, the 30-68 day ban is over-broad. But, let me point out another thing…

Richard Hasen: That was a nice try, Brad.

Bradley Smith: Let me point out another thing about it. Rick says, well, if you're an individual, you can spend a million dollars. Well, that's what's interesting about this. If your 40,000 members of an association say that--you know, pick a group, any groups you want--Americans For Good Things, right--and you each contribute a buck, and you try to spend $40,000 in ads from the corporation, they can't do that. Now Rick says, well, they can do it if they jump through various hoops and set up another kind of organization. But, that's exactly the kind of problem. People don't want to do that. They want to speak as that group.

Peter Robinson: Let's see what they make of my reform, full disclosure and no limits.

Title: Tell Me Something I Don't Know

Peter Robinson: Colin Powell, it is clear did not run for President because by the time he made up his mind he might want to run for President, it was too late to put together the organization to raise all the money. Thought experiment: Colin Powell calls a news conference in New York. He has a dozen people lined up behind him. He announces that each of those rich, Wall Street people is donating $2 million to his campaign and he runs for President. What's wrong with that?

Richard Hasen: I think it presents the same problem. Do you think that those Wall Street executives behind him are representative of most of the people in the United States? Most of the people in the United States cannot afford to give the two thousand dollar limits. They can't afford to be the...

Peter Robinson: But the voters in the United States can decide for themselves whether they are willing to accept this from Colin Powell, or not.

Richard Hasen: Sure, but what happens is that when wealth dictates who the candidates are, it sets the agenda. And the agenda should not be set by only those who have wealth. It should be...

Peter Robinson: But, that's exactly what's happening now.

Bradley Smith: Rick talks about this as if this is something new but this is the system under which Abraham Lincoln was elected and Teddy Roosevelt and Grover Cleveland. And, you know, George Washington didn't expect equal contributions. Rich people paid it. And rich people…

Richard Hasen There weren't a lot of television ads back then.

Bradley Smith: …but, rich people still paid for the campaign. When Ross Perot ran in 1992 and 1996, his money did not drown anybody out. It didn't make anybody--it made millions of people able to be heard. It gave people a voice who wanted to talk about the deficit.

Peter Robinson: So, the answer, young clerk, is disclosure. Thought experiment. The new rule is anybody can give anybody any amount of money to any candidate he wants, as long as it's all posted on the Web within 24 hours.

Richard Hasen: Why, I think that would be a big step forward. But, I would say that you want to keep some exception for small contributions and some, because otherwise, you still rope in all that true, most bottom level grass roots activity, if you start saying every nickel and every dime has to be reported.

Bradley Smith: But you agree then that we should have disclosure.

Peter Robinson: So you're in favor of disclosure?

Bradley Smith: No, I don't necessarily agree that you want to disclose absolutely everything. The question is always, what counts? In other words, do we make people--the Court has long recognized, and we've long recognized that there's great advantages to anonymous speech. The Federalist Papers were published anonymously. People often have reasons for wanting to hide their identity. There's a case with the Supreme Court, NAACP v. Alabama. The State of Alabama wanted to know who's behind this NAACP activity back in the 1950s?

Peter Robinson: Right.

Bradley Smith: And we can understand why the NAACP wanted to keep its donors anonymous. So, I think there's subtle reasons for often keeping donors anonymous.

Richard Hasen: The Court had a very sensible response to this problem in the campaign finance context in a case called Brown v. Socialist Workers Party. The Court said, look if you're going to face threats of harassment, then you can get an exemption from general disclosure laws. But if we're talking about large-scale spending, you know, if someone wants to spend $10,000 on an advertisement, whether it's a corporation or a union or an individual, and that advertisement is likely to influence the outcome of federal election, that should be disclosed. There's no excuse for not disclosing. It just makes sense. At the very least, we should all agree to disclosure.

Peter Robinson: Can you agree with that? That disclosure, as a standing rule, is a very good rule and that exceptions can be granted in particular cases?

Bradley Smith: I think that's an acceptable position.

Peter Robinson: Last topic: advice for the Supreme Court on campaign finance reform.

Title: Taking the First

Peter Robinson: What should the Supreme Court do with McCain-Feingold? Substantially uphold, substantially strike down, or muddle along? Brad, what do you want the Court to do?

Bradley Smith: I think, whatever it does, many people are going to be unhappy. I think it needs to go back to first principles and think about what are our First Amendment priorities again and does it make sense to have a system in which topless dancing gets more speech protection than political speech.

Peter Robinson: Rick, what should the Court do?

Richard Hasen: I think it should strike down some of the obviously unconstitutional parts of the law, such as the one Brad mentioned that prevents minors from making contributions under any circumstances. But, it should uphold the major portions of the law, particularly those that regulate disclosure, and laws that require that corporations and unions that want to spend money on ads that are likely to influence the outcome of elections do so through a separate PAC.

Peter Robinson: Okay. Prediction: five years from now--we've teased out two fundamentally different sets of principles--he's a kind of free market man, as regards the market for political speech--and you want, you want things to run according to certain other principles of--I guess what we'd say is equality or, okay. So, five years from now, which set of principles will have become the more operative? That is to say, will Americans find themselves more regulated five years from now in giving money to candidates and political parties, or less so? What's your prediction? Rick?

Richard Hasen: I think there'll be different regulations with the same amount of regulation. That is, I think part of McCain-Feingold gets upheld, part doesn't. There's some more tinkering. There are changes on the Supreme Court and things muddle through for a while.

Peter Robinson: So, you see, then, the campaign finance, regulatory and legal regime as one in kind of constant motion--constantly needs to be updated, patched, adjusted. Is that the case?

Richard Hasen: Well, I'm not saying that normatively that's the way it should be. That's my prediction of what's going to happen. We're going to see small change.

Peter Robinson: I see. Brad?

Bradley Smith: If any of McCain-Feingold is upheld, we'll have more regulation and I think five years from now, we'll be in more heavily regulated environment but we'll continue to hear all the same complaints about how some people are raising too much money, about how it's so unfair, about how it's so un-corrupting. And that will continue to be used for more regulation, more regulation, but the complaints will never cease.

Peter Robinson: Well, what's the way out?

Bradley Smith: The way out is to go back to the idea of the First Amendment, that it's not up to the government to decide who has spoken too much and who has spoken too little; it's not up to the government to decide whose advertising is a sham and whose advertising is real advertising, that this is something too dangerous to leave in the hands of government and will be taken over by special interests and distance the people from politics.

Peter Robinson: Brad Smith and Rick Hasen, thank you very much. I'm Peter Robinson for Uncommon Knowledge. Thanks for joining us.