Political ads: Do we know enough?

For all Americans who bemoan political advertisements and the information about them, former Federal Election Commission Chairman Bradley Smith has a message: Calm down already.

“People really need to relax and say, ‘Do we have enough to judge the ads?’ I think almost always we do,” said Smith, an election law lawyer who serves as chairman of the pro free speech, anti-campaign regulation organization Center for Competitive Politics.


“There’s a growing body of evidence that the main reason some people want more disclosure is not so they can judge the ads themselves and judge the credibility of the ads, but precisely the opposite,” Smith said during an interview for POLITICO’s weeklong video series on money and politics, which launched Tuesday. “They’ve already judged the ads. They’ve decided they don’t like the speaker, and what they want to do is harass and boycott and bother the speaker. And I don’t think there’s any reason why the government should be operating a system of mandatory disclosure for the purpose of helping people molest and bother and vandalize and boycott their fellow citizens for their political conversations.”

Since the Supreme Court’s Citizens United v. Federal Election Commission decision in January 2010, much ado has been made about the notion of corporate personhood, and whether a lack of federal regulations is effectively granting corporations similar rights to those of an individual.

Presidential candidate Mitt Romney recently suggested as much — a statement that drew significant fire from Democrats.

“Of course, corporations are not people, but they are made up of people, and it’s a very convenient legal fiction to treat them as people. Basically, corporations have all the rights that their members have when they associate in a group,” Smith said. “So, for example, we as people, we have a right to speak. I have a right to speak. You have a right to speak. If we get together, we have a right to speak, and we have a right to speak as we get together as a corporation to speak. We have a right to petition to assemble.”

Notably this year, comedian Stephen Colbert has lampooned the nation’s campaign disclosure system by playing on a series of federal court decisions that have made it easier for corporations, unions and special interests to raise and spend unlimited amounts of money on political communications.

He’s even created his own super PAC and a nonprofit corporation designed to engage in political messaging.

For Smith, he’s mildly amused — at best.

“I’ll stipulate that I think Stephen Colbert is funny, and I think he’s done some good work at times,” Smith said. “But his latest series of escapades, I think, oddly enough, sort of show the opposite of what he thinks they’re going to show; that is, he wants to show how much … the system is so terribly unfair in some odd way and that normal people can’t get a break.”

Smith continues: “What Colbert’s Report is really showing is how much the regulation favors those who already have power, people who have TV shows, people who … get invited to testify in Congress like Stephen Colbert for no reason other, I think, than he’s got a TV show. People who have the resources of big corporations behind them benefit from regulation, not the average person.”

But might a laissez-faire campaign system backfire? Unlikely, Smith argues.

“The country benefits from free and open political discourse,” he said. “The framers, you know, pretty much got it right when they said, ‘pass the First Amendment,’ and they said, ‘look, we don’t want Congress making laws in this area.’ Let people play in the game and the truth will come out.”

Years ago, incumbent politicians would almost always be in a stronger position than his or her challenger, because the challenger couldn’t raise enough money to compete, Smith said.

That began to change during the 2010 election cycle, thanks to outside political organizations that could pump significant amounts of money into a race, thereby making the race more competitive for a challenger or more lightly funded candidate in an open-seat contest, he said.

During the previous election cycle, this situation benefited Republicans, but “in other elections we’ll find that super PACs will work more in favor of Democrats, more against Republicans,” Smith predicted. “It seems like the Republicans sort of got the drop on the Democrats in 2010 with groups like Crossroads GPS, but these things come and go in cycles.”

He also said the current presidential election cycle will see Republican- and Democratic-leaning outside groups leveraging their new rights to engage in political messaging on behalf — or in opposition to — federal political candidates.

As for the much-maligned FEC, which critics deride as toothless and key votes often end up deadlocked 3-3, Smith said the status quo works just fine.

“We don’t want a commission in which one party could, on pure partisan grounds, ram through its sort of approach, that it could launch enforcement actions just against the other party or whatever,” Smith said. “The 3-3 design of the commission with four votes needed to accomplish anything assures some level of bipartisanship, that there is some level of agreement before the commission goes forward rather than pure partisanship, and I think that’s a very valuable protection.”