< On Natural Elections

Transcript

Friday, December 14, 2007

BROOKE GLADSTONE:
From WNYC in New York, this is NPR's On the Media. I'm Brooke Gladstone.
BOB GARFIELD:
And, I'm Bob Garfield. The FEC, the Federal Election Commission, regulates the presidential election, and, as you may have heard, there's one coming up in 2008. So the FEC is probably fully staffed and humming along. Right? No.

The group, which is supposed to be composed of six members, currently has three that are recess appointees. If they are not confirmed and they may not be their terms will end very soon and then the commission will be without a quorum and unable to act after January 1st.

So something has to give, or the country could head into an election year without a functioning regulatory body in place to do its job. What would that look like? For some, who consider the existence of the FEC an affront to free speech, it would mean a purer freedom. For others, who believe that regulation protects us from the corruption that happens when politics meets money, it would be a mess. Think battalions of Swift Boat smear campaigns.

Let's begin with the anti regulation argument. Brad Smith was once chairman of the FEC. His group is the Center for Competitive Politics, and he joins us now. Brad, welcome to OTM.
BRAD SMITH:
Hi, Bob. Thanks.
BOB GARFIELD:
If there is no FEC after January 1st, what happens?
BRAD SMITH:
What would happen is that complaints that are already in the pipeline that is, where people have alleged that others have already violated campaign finance laws the staff at the FEC would continue to work on those complaints. But the FEC would not be in a position to vote on anything new.

They could not vote to approve federal matching funds for candidates who are eligible for federal matching funds. They would not vote to approve audits of campaigns. So all of that would come to an end and our campaigns would be basically like they were in, say, 1960.
BOB GARFIELD:
Free for alls.
BRAD SMITH:
Well, if you think 1960 was just a horrible free for all, that's right.
BOB GARFIELD:
So from your perspective, the best FEC is no FEC at all.
BRAD SMITH:
Well, I've served on the FEC, and what I can tell folks is that there are very many complaints filed with the FEC but virtually none of them have anything to do with preventing corruption in American politics.

And if we realize that this country functioned without any kind of Federal Election Commission from its founding until the 1970s, we can look and say, we did okay. We elected some really great presidents. We grew as a country, we prospered and we did so in an environment in which people were free to speak about politics without worrying about a Federal Election Commission.
BOB GARFIELD:
Now, you represent a group called Speech Now, which has a novel way of getting around restrictions, and it is, as I understand it, now petitioning the FEC for approval to do so. Can you tell me about its attempt to target candidates it deems anti free speech?
BRAD SMITH:
Speech Now is a group of citizens. They are not a corporation. They take no corporate money. They make no contributions directly to political candidates. Rather, they're just a group of individual citizens who want to speak freely about candidates. And it's a pretty straightforward issue. Are American citizens free to join together to spend their money on politics.

The interesting thing here is that everybody agrees a single individual, be it Jon Corzine or Michael Bloomberg or George Soros, can start spending all they want to talk about a political candidate. But the law seems to suggest, according to some, that as soon as two people get together and do the same thing, somehow they're violating the law.

And Speech Now believes that that's a violation not only of their First Amendment rights to speak but also of their freedom of association also guaranteed by the First Amendment.
BOB GARFIELD:
So if there's no FEC after January, there's actually no one to rule on your petition. Isn't that ironic?
BRAD SMITH:
That is, and that is an issue. And in that case, the organization will have to weigh up its options because it's interested in running advertisements here in the 2008 campaign.
BOB GARFIELD:
Now, you were involved in another attempt to circumvent federal campaign finance laws, a very clever [LAUGHING] one, a high flying one. It's the Ron Paul blimp. Tell me about it and how it's designed to work.
BRAD SMITH:
Sure. Bob, I represent a company called Liberty Political Advertising, and it's important to understand that this project, the Ron Paul blimp, is separate in all ways from the Ron Paul campaign.

And the idea here is to sell political advertising in timeshares. So here what the company has done has purchased a large block of what we would call advertising time that is, a blimp and then is selling off segments of that time. And individuals who buy time on the blimp will have to file independent expenditure reports to the Federal Election Commission. They are making expenditures on their own right in support of Ron Paul.

The FEC has long recognized a commercial exemption. For example, when a campaign goes and hires an advertising agency or a pollster to produce ads for the campaign or to take polls for the campaign to buy advertising time for the campaign, those companies do not become political committees. They're not limited in any way. Only the payer is.

And that's the principle under which Liberty Political Advertising is operating the Ron Paul blimp. They're selling advertising time on the blimp. Individuals who buy that time file independent expenditure reports with the FEC.
BOB GARFIELD:
[LAUGHS] So they're not donors. They're purchasers. And it's not a nonprofit PAC or a 527 organization. It is a for profit company that's selling advertising time that every one of those ads just happens to be in support of Ron Paul on the side of this blimp.
BRAD SMITH:
Right, but let me put it this way to you. If we were to have a company that owned a bunch of billboards and we wanted to sell billboards to George Soros, billboard space, and George Soros ran a bunch of billboards supporting some candidate for president, nobody would say that George Soros could not do this nor would anybody say that the company somehow became a political committee because it was selling billboard space to George Soros to run ads supporting the candidate of his choice.

What Liberty Political Advertising is doing is making that same ability to advertise available to ordinary citizens who can't afford to go out and buy a whole billboard all by themselves.
BOB GARFIELD:
Well, it's very cunning.
BRAD SMITH:
What's fascinating to me is that there are people out there saying, oh, this is a bad thing. Why would somebody think that? There is not a person in this entire United States of America who literally thinks that Ron Paul is somehow being corrupted by this. And that is the only basis that the Supreme Court has recognized as a legitimate one to regulate political speech.
BOB GARFIELD:
Brad, thank you very much.
BRAD SMITH:
Thank you, Bob.
BOB GARFIELD:
Former FEC chairman Brad Smith is chairman and founder of the Center for Competitive Politics. Paul Ryan is an attorney with the Campaign Legal Center in Washington, DC. He regularly files opinion in opposition to Brad Smith's point of view, and he joins us now. Paul, welcome to the show.
PAUL RYAN:
Thank you. It's a pleasure to be here.
BOB GARFIELD:
What do you make of the Ron Paul blimp, which will run ads that are purchased like ordinary ad time in expenditures by individuals? It seems to circumvent all existing campaign finance reform attempts, no?
PAUL RYAN:
Well, for one thing, we don't know whether or not the Ron Paul blimp efforts are or are not legal. The Federal Election Commission hasn't weighed in on the issue. I will say that it's a very creative approach to circumventing federal campaign finance laws.

One of the things that makes the Ron Paul blimp operation look a whole lot more like a political committee than an independent business advertising operation is that the folks running the blimp decided what the message on the blimp is going to be, unlike an advertising company, unlike a billboard company, for example, that would gladly accept people walking in the door wanting to buy billboard space to put up any message that the person paying for the ad wants.

The Ron Paul blimp operation is much, much different. In the Ron Paul blimp operation, the folks running the so called advertising company have determined the message. They've determined where the message is going to run. They've determined the duration that the message will be running. And they're simply asking people to fund that.

It appears to be right on the cusp of any issues that have been dealt with by the Federal Election Commission in the past. I don't believe they've dealt with or decided how to treat this type of group before.
BOB GARFIELD:
Well, tell me about the precedent there. Has the FEC or have the courts ruled on a case where something that looks like a duck and quacks like a duck but is designed technically not to be a duck can operate lawfully?
PAUL RYAN:
I don't know of any precedent that's directly on point, but some of the most recent examples of efforts to get around existing laws were all the 527 organizations that were active back in the 2004 presidential election cycle.

There, the lawyers for these 527 groups were pointing to a definition in the campaign finance law, the definition of expenditure, and interpreting it to mean that unless they say explicitly vote for or vote against a candidate, they're not making an expenditure and therefore they aren't covered by the campaign finance laws.
BOB GARFIELD:
So you could do a Swift Boating smear against John Kerry, for example. If you don't say don't vote Kerry, you at least, on a technicality, don't fall within the purview of the regulation.
PAUL RYAN:
That was certainly the interpretation of the law that was given by the attorneys that were hired by these groups to keep them presumably on the right side of the law. Unfortunately, from their perspective, the Federal Election Commission concluded that these groups broke the law by not registering as political committees back in 2004 and that this definition, this interpretation of what is and is not an expenditure by these groups and their lawyers was incorrect.
BOB GARFIELD:
As we head into 2008 with a very real possibility of having no active Federal Election Commission, this raises the question of what difference does it make whether there is one or isn't one because their rulings almost always are ex post facto, after the damage has been done.
PAUL RYAN:
I've been a very vocal critic in past years of the lax fines that have been imposed by the Federal Election Commission, even with respect to these 527 organizations that the commission found broke the law. The fines that they gave them, although they created a little bit of sticker shock because they were in the several hundreds of thousands of dollars, they amounted to only roughly one percent of the funds that these groups illegally raised and spent back in 2004.
BOB GARFIELD:
A cost of doing the smear business.
PAUL RYAN:
Yes. But that being said I do think there is great value in having an administrative agency like the Federal Election Commission. And there are comparable agencies at the state and local government levels around the country. They should be repaired, but they are valuable and important pieces of the campaign finance law enforcement process.
BOB GARFIELD:
Well, that brings us all the way around to where we started this discussion. Hypothetically, what does an unregulated campaign look like in 2008?
PAUL RYAN:
Even if there is no Federal Election Commission on the job for the first couple of months of 2008, it's not to say that once the Federal Election Commission itself is reconstituted that it won't go back and reexamine all of the activities that occurred during the election cycle in which the commission may have been absent.

It can, at any time down the road I believe the statute of limitations is five years so just because the sheriff may not be in town doesn't mean that there are no laws on the books that need to be abided by.
BOB GARFIELD:
Well, Paul, thank you so much.
PAUL RYAN:
You're welcome.
BOB GARFIELD:
Paul Ryan is an attorney with the Campaign Legal Center.