Joint Letter to President Clinton Regarding Bradley A. Smith’s Appointment to the FEC

Letter to President Clinton

June 3, 1999

Dear President Clinton:

According to recent press reports, Bradley A. Smith, associate professor at Capital University Law School, “is a leading GOP favorite” for appointment to the Federal Election Commission (FEC). We believe that such an appointment would be totally at odds with any notion of fair and effective enforcement of the federal campaign finance laws. We strongly urge you not to make this appointment if Mr. Smiths name is submitted to you by congressional Republicans.

Any member of a federal regulatory agency should, at a minimum, believe in the mission of that agency, the laws to be administered by the agency, and the constitutionality of those laws.

Because of his clear and open contempt for this nations campaign finance laws, Mr. Smith fails this basic test. His writings demonstrate his comprehensive hostility to the federal campaign finance laws laws which he believes are wrong, burdensome, and unconstitutional.

Mr. Smith is on record for the repeal of the Federal Election Campaign Act (FECA). He has written:

“[T]he most sensible reform is a simple one: repeal of the Federal Election Campaign Act.”

Mr. Smith is on record for the position that the federal campaign finance laws are, in their entirety, unconstitutional. He has written that the FECA the law administered by the FEC is:

“- profoundly undemocratic and profoundly at odds with the First Amendment.”

Any individual who believes that an agencys organic statute is unconstitutional and should be repealed in toto, is not fit to serve as a Commissioner of the agency charged with administering and enforcing that statute.

No one, for example, would conceive of appointing to head the Drug Enforcement Agency an individual who believes all the federal anti-drug laws are unconstitutional and should be repealed. Such an appointment would be viewed as an act of utter disdain and disrespect for the laws to be administered by the agency involved.

Mr. Smith believes the federal campaign finance laws are not only unconstitutional, but misguided in their very purpose. In supporting repeal of the campaign finance laws, he has written that the country “would be best served by deregulating the electoral process.”

Mr. Smiths ideas are not simply a matter of whether one takes a liberal or conservative view of the existing campaign finance laws. His views are nothing short of radical. While such ideas may be appropriate for an academic participating in public debate, they are wholly unacceptable for a Commissioner charged with the statutory mandate to administer and enforce the nations anti-corruption laws enacted by Congress and upheld by the Supreme Court.

Indeed, Mr. Smith fails even to accept the fundamental anti-corruption rationale for the campaign finance laws the rationale that was at the heart of the Supreme Courts decision in Buckley v. Valeo upholding the constitutionality of the existing campaign finance laws.

Mr. Smith dismisses the rationale by writing, “Moneys alleged corrupting effects are far from proven. – [T]hat portion of Buckley that relies on the anti-corruption rationale is itself the weakest portion of the Buckley opinion both in its doctrinal foundations and in its empirical ramifications.”

The FECA requires that members of the Federal Election Commission shall be chosen “on the basis of their experience, integrity, impartiality, and good judgment.” 2 U.S.C. ? 437c(a)(3).

Mr. Smith is in no way “impartial” about the campaign finance laws. He does not believe in them.

Mr. Smiths adamant opposition to the existence of the federal campaign finance laws, and his clearly stated views that they are unconstitutional, make him unfit to serve as a Commissioner of the FEC.

We strongly urge you not to nominate Mr. Smith to serve on the Federal Election Commission if his name is submitted to you as a potential nominee for the agency.

Sincerely,

Donald J. Simon
Acting President
Common Cause


Fred Wertheimer
President
Democracy 21


E. Joshua Rosenkranz
Executive Director
Brennan Center for Justice At NYU School of Law