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Brad Smith: Radically Wrong for the FEC

Published: March 6, 2000

Roll Call
March 6, 2000

Brad Smith: Radically Wrong for the FEC
By E. Joshua Rosencranz

“The most sensible reform is a simple one: repeal of the Federal Election Campaign Act,” a Wall Street Journal op-ed declared of the campaign finance law that limits the money special interests can cram in the pockets of elected officials.

Now identify the author.

Was it:

    1. an activist who describes himself as one the nation’s most “radical” opponents of campaign finance regulations;
    2. an ivory tower academic with an extensive oeuvre trashing campaign finance laws and insisting that huge contributions do not actually corrupt politicians; or
    3. President Clinton’s most recent nominee to the Federal Election Commission, which enforces those laws?
The correct answer is, “All of the above.”

The author is Bradley Smith, whom the president nominated to the FEC last week. Unless the Senate rejects the nomination, Mr. Smith will be responsible for interpreting and enforcing the very laws he has spent a career condemning.

Smith’s tirades about campaign finance laws have strayed so far from the mainstream that even he had trouble believing the nomination was serious. As he tells it, “My first thought was, ‘They’ve got to be just looking at me to put my name on the list so that whoever they really want will look20less radical.”

Smith’s sponsors in the Senate Republican leadership could scarcely have found a more radical figure. If they have their way, they will appoint a chief election law enforcement officer who has denounced the laws as “profoundly undemocratic and profoundly at odds with the First Amendment.” They would entrust the solemn duty of protecting the integrity of our elections to a critic famous for the ostrich-headed view that “money’s alleged corrupting effects are far from proven.” Their proposed chief regulator would just as soon “deregulate and just let it go.”

Seem paradoxical? It is—as paradoxical as appointing a police chief who rails against the criminal laws or an Environmental Protection Agency chief who advocates more pollution—especially coming from a president who just last month beseeched Congress “to restore the American people’s faith in their democracy and pass real [campaign finance] reform this year.”

It’s not that Clinton actually wants Smith on the FEC. Rather, the Republican leadership backing Mr. Smith was holding 70 judgeships hostage, and the president caved in to avoid “shut[ting] down the whole appointment process.” Clinton acknowledged that presidential candidates Gore and Bradley “were right to condemn” the nomination, and has all but begged the Senate to reject the nomination.

The Senate should accept the invitation.

What is at stake is the very integrity of Congress’s own laws. That is what the vote is about, notwithstanding the myths that Smith’s defenders have begun injecting into the debate.

Myth One: Mr. Smith has been misunderstood.

When he called for the repeal of all federal election laws, he did not mean to suggest abolishing the FEC or abandoning disclosure laws. He would merely abandon all restrictions on the flow of money into politics.

Reality: In other words, Mr. Smith would not throw out the baby with the bathwater. He would keep the bathwater.

Myth Two: The FEC is a rogue enforcer that has lost its way, taking misguided positions that repeatedly lose in court. Mr. Smith will bring more discipline to the FEC, infusing it with his superior sense of what will fly in the courts.

Reality: Actually, though the FEC has suffered some minor setbacks in the lower courts, it has a remarkably good track record when its cases finally wend their way to our highest court.

More to the point, though, appointing Mr. Smith to set the agency straight is like appointing Jerry Springer to develop a code of civil discourse. Mr. Smith’s most notable addition to the discourse is his insistence that special interest contributions do not corrupt and that contribution limits are therefore unconstitutional, notwithstanding the U.S. Supreme Court 1976 ruling in Buckley v. Valeo holding the opposite. Last month the Supreme Court resoundingly pulled the rug out from under him with the following slam: “The cynical assumption that large donors call the tune could jeopardize the willingness of voters to take part in democratic governance.”

Myth Three: Mr. Smith will not make the law, he will only enforce it, and we should trust that he will faithfully adhere to his oath to uphold the law.

Reality: Why in the world would a radical critic of election laws want the job of stoically enforcing the laws he abhors? He doesn’t. He knows that in election law, as in other complex regulatory regimes, the law is open to interpretation. An FEC commissioner who is bent on de-clawing the law from the inside will have innumerable opportunities. Keep in mind, for example, that the so-called “soft money exception” that has gutted our entire regulatory scheme was first created by the FEC in 1978, and it was the FEC, through lax enforcement, that allowed the exception to swallow the rule in recent election cycles.

The bottom line is that anyone who cares about enforcing the law as it is written – not to mention anyone who cares about meaningful reform – should oppose Smith. There are more than enough Senators who meet that description. A majority of the Senate – including eight Republicans who bucked the party leadership – has voted to patch up the campaign finance laws. While that majority was not enough to overcome a filibuster, it is enough to torpedo a nomination.

If Smith wants to espouse radical ideas and agitate for change in election laws, let him do it within the halls of his academy or in the corridors of Congress. Don’t let him do it from inside the FEC.

E. Joshua Rosenkranz is President of the Brennan Center for Justice at New York University School of Law.