Bradley A. Smith:
A Potential FEC Nominee
Who Would Repeal All Election Laws
And Abolish The Agency He Aspires To Head
June 3, 1999
Imagine the President nominating an Attorney General who believes that most of our criminal laws are “profoundly undemocratic” and unconstitutional. Or an SEC Commissioner who has publicly called for the repeal of all securities laws with the plea, “We should deregulate and just let it go.” Or a nominee for EPA Administrator who believes that the agency he aspires to head and “its various state counterparts” should be abolished. It would be unthinkable. In a society rooted in the rule of law, we would never tolerate the appointment of a law enforcement officer who has vocally and repeatedly denounced the very laws he would be called upon to enforce, much less one who has called for the repeal of those laws and the abolition of the agency he aspires to head.
Unthinkable. Yet, some Senators thought of it.
The Republican favorite to fill the current vacancy on the Federal Election Commission, according to The Washington Post, is Bradley A. Smith, a law professor at Capital University Law School, who has devoted his career to denouncing the FEC and the laws it is entrusted to enforce in precisely those strident terms.1
Brad Smith believes that the entire body of the nation’s campaign finance law is fundamentally flawed and unworkable – indeed, unconstitutional.2 He has forcefully advocated complete deregulation of the system.3 And, if the James Watt of campaign finance had his way, the FEC, and its state counterparts, would go out of business.
These are not stray and ill-considered comments. Rather, Brad Smith has become the single most aggressive advocate for deregulation of campaign finance in the academy today. Ask any scholar of campaign finance who has spilt the most ink denouncing our current campaign finance laws; the answer will be Brad Smith. Ask any enemy of campaign finance laws to identify the most sought-after witness to make the case to Congress; Brad Smith will be the top answer. And ask any knowledgeable citizen with a deep commitment to faithful enforcement of our campaign finance laws to name the last person they would entrust with the task. Brad Smith would make the top of the list.
Mr. Smith has every right to go to Washington and testify before Congress. And he is entitled to sit in the ivory tower and advocate the overthrow of the campaign finance regime. But when it comes to filling the job of faithfully enforcing campaign finance laws, the public is entitled to a chief law enforcement officer who believes the laws are not just defensible, but important. A law enforcement officer who scoffs at the laws he is sworn to enforce will breed nothing but contempt for those laws.
In the following passages, which are illustrative of mountains of literature published by Brad Smith, he eloquently makes the case for why he should not be appointed to the FEC.
BRAD SMITH BELIEVES THE FEDERAL ELECTION CAMPAIGN ACT SHOULD BE REPEALED AND THE FEC ABOLISHED
Congress created the FEC for the purpose of upholding, administering, and enforcing the Federal Election Campaign Act (FECA). Brad Smith, however, believes that the Federal Election Campaign Act should be repealed. In an op-ed published in The Wall Street Journal, Smith stated: “When a law is in need of continual revision to close a series of ever-changing ‘loopholes,’ it is probably the law, and not the people, that is in error. The most sensible reform is a simple one: repeal of the Federal Election Campaign Act."4 Similarly, in a television interview with Bill Moyers, Smith stated: “We need to deregulate. Most of the problems that we’ve talked about tonight were exacerbated or created by the Federal Election Campaign Act. . . . I think we should deregulate and just let it go. That’s how our politics was run for over 100 years."5 In a policy paper published by the Cato Institute, Smith concluded: “FECA and its various state counterparts are profoundly undemocratic and profoundly at odds with the First Amendment."6
The bottom line for Brad Smith: “People should be allowed to spend whatever they want on politics."7 Smith’s complete disdain for FECA renders him unsuitable for the role of an FEC Commissioner, whose principal job is to administer FECA as enacted by Congress and upheld by the courts.
BRAD SMITH REJECTS THE SUPREME COURT’S RATIONALE FOR UPHOLDING CAMPAIGN FINANCE LAWS AND WOULD STRIKE THOSE LAWS AS UNCONSTITUTIONAL
Congress passed FECA on the heels of the Watergate scandals. In Buckley v. Valeo, the Supreme Court held that the government’s interest in combating corruption and the appearance of corruption justified the contribution and disclosure limits contained in FECA. The Supreme Court made clear that without that rationale campaign finance laws would fall.
Smith does not agree with either Congress or the Supreme Court that the goal of combating corruption justifies FECA. Smith has stated, “Whatever the particulars of reform proposals, it is increasingly clear that reformers have overstated the government interest in the anticorruption rationale. Money’s alleged corrupting effects are far from proven. . . .[T]hat portion of Buckley that relies on the anticorruption rationale is itself the weakest portion of the Buckley opinion – both in its doctrinal foundations and in its empirical ramifications.” 8
FEC Commissioners are entrusted to administer and enforce the nation’s campaign finance laws. Brad Smith has a long history of vigorously and stridently opposing all of these laws. Those entrusted with administering and enforcing laws, at some basic level, believe in them and inspire confidence in them. Brad Smith, the leading crusader against the FEC and all election laws, represents the antithesis of this aspiration.
E. Joshua Rosenkranz
1. Al Kamen, “The Federal Page; In The Loop,” Washington Post, May 5, 1999, at Section A, page 29.
2. Bradley A. Smith, Panel Discussion, “Money & the First Amendment: Campaign Finance & Free Speech,” Center for First Amendment Rights, University of Connecticut School of Law, May 5, 1997.
3. Bradley A. Smith, “Campaign Finance Regulation, Faulty Assumptions and Undemocratic Consequences,” Cato Institute Policy Analysis, September 13, 1995 at page 2 (“efforts to regulate campaign finance have been little short of disastrous. . . . [T]he country would be best served by deregulating the electoral process”).
4. Bradley A. Smith, “Why Campaign Finance Reform Never Works,” Wall Street Journal, March 19, 1997, at Section A, page 19.
5. Bradley A. Smith, Panel Discussion Interview, MSNBC Burrelle’s Information Services Internight, 1996 WL 16291101, September 14, 1996.
6. Bradley A. Smith, “Campaign Finance Regulation, Faulty Assumptions and Undemocratic Consequences,” Cato Institute Policy Analysis, September 13, 1995, at page 23.
7. Bradley A. Smith, quoted in Roger K. Lowe, “Political Fund Reform Facing a Rocky Future,” Columbus Dispatch, September 28, 1997. See also Bradley A. Smith, “Campaign Finance Regulation, Faulty Assumptions and Undemocratic Consequences,” Cato Institute Policy Analysis, September 13, 1995, at page 15 (“In short, campaign finance regulation is undemocratic”).
8. Bradley A. Smith, “Money Talks: Speech, Corruption, Equality, and Campaign Finance, 86 Georgetown Law Journal 45, 63 (October 1997).