Smith and Owen’s Work on Campaign Finance Influences U.S. Supreme Court
On April 25, 2007, the U.S. Supreme Court heard a major campaign finance case, FEC v. Wisconsin Right to Life. At least three briefs for this case cited an article by Capital University Law School Professor Brad Smith and 2007 alumnus Jason Robert Owen. The article, “Boundary Based Restrictions in Boundless Broadcast Media Markets: McConnell v. FEC's Underinclusive Overbreadth Analysis” was published in the Spring 2007 Stanford Law & Policy Review. In the article, Smith and Owen argue that the Supreme Court’s 2003 decision in McConnell v. FEC, upholding portions of the bipartisan campaign reform act (“McCain-Feingold”), was based on a flawed understanding of how the law works. They demonstrate that because the Court’s opinion in McConnell failed to understand how the law’s provisions interact with multi-state media markets to limit politically oriented speech, it grossly underestimated the extent to which McCain-Feingold barred certain political ads. Because of the law’s resulting overbreadth, Smith and Owen argued that the Court should revisit its McConnell ruling and allow “as applied” exceptions to the law. The article was cited in Appellee’s brief to the U. S. Supreme Court in FEC v. Wisconsin Right to Life, decided in June. It also was cited and discussed positively and extensively in two of the amicus briefs filed in the case, one filed on behalf of the Center for Competitive Politics and the other on behalf of Senator Mitch McConnell (and written by former U.S. Solicitor General Theodore Olson). At oral argument, Justices Antonin Scalia and Samuel Alito asked questions based on the analysis in the Smith-Owen article. While the Court did not mention the issue in its final judgment, the Court did, in fact, hold that the Constitution required a broad “as applied” exception to the statute’s advertising limitations. Smith is one of the nation’s leading authorities on election law and campaign finance. He returned to Capital in 2006 after five years in Washington, D.C., where he served as Commissioner, Vice Chairman, and Chairman of the Federal Election Commission (FEC). His writings have appeared in such academic journals as the Yale Law Journal, Georgetown Law Journal, and Pennsylvania Law Review, and in popular publications such as the Wall Street Journal, USA Today, and National Review. In 2001, Princeton University Press published his book, Unfree Speech: The Folly of Campaign Finance Reform. His many media credits include national appearances on ABC, NBC, PBS, Fox, CNBC, MSNBC, C-Span, and Bloomberg Media, including such programs as Hardball with Chris Matthews, and the O’Reilly Factor. He also has appeared on numerous local and national radio programs, and made television appearances in Great Britain, Japan and Canada. At the time the article was published, Jason Owen was a third-year law student and research assistant for Smith; he graduated in May 2007 and has since passed the Pennsylvania bar and is currently working for his alma mater as an Admission Representative for fall 2007. He received the Dean’s Award for Outstanding Leadership and Contributions to the Law School and Capital University Law School’s Ackerman-Gemette Scholarship for dedication to advancing GLBT rights in the United States in 2005.He was co-president of the Capital Equity Alliance (formerly known as BiGLaw), had served as the SBA Elections Committee Chairman, and was a member of the committee that developed and implemented Capital’s Loan Repayment Assistance Program. Owen spent two summers as a legal intern in the Pennsylvania Office of Attorney General. Originally from Erie, Pennsylvania, Owen received his undergraduate degree from Allegheny College. Faculty News & Announcements Archives: |
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