June 9, 1999
This Mr. Smith should not go to Washington
By E. Joshua Rosenkranz
Fighting a discharge petition, the House Republican leaders have shown great ingenuity in defending our broken campaign finance system. But Senate Majority Leader Lott (R-Miss.) is reportedly ready to best this intransigence by nominating to the Federal Election Commission the James Watt of campaign finance: Bradley A. Smith, an associate law professor at Capital University Law School.
This Mr. Smith should not be able to go to Washington – that is, not as FEC commissioner. He believes that the entire body of the nation’s campaign finance law is fundamentally flawed and unworkable, indeed unconstitutional. He has forcefully advocated complete deregulation of the campaign finance system. And, if he had his way, the FEC, and its state counterparts, would go out of business.
These are not stray or ill-considered comments. Smith has spilt a tremendous amount of ink denouncing campaign finance regulations and is a regular witness before congressional and state legislative committees. Here are a few highlights:
“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.”
“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.”
“FECA and its various state counterparts are profoundly undemocratic and profoundly at odds with the First Amendment.”
And Smith’s disdain for regulating the role of money in politics doesn’t just come in sound bites. Commenting on Buckley v. Valeo – the landmark Supreme Court case in which the court held that the government’s interest in combating corruption and the appearance of corruption justified limits on contributions to candidates – Smith argues that the goal of combating corruption does not justify federal law.
“[R]eformers 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.”
Veteran legislators, of course, disagree with Smith’s analysis of the role of money in politics. According to former Representative Vin Weber (R-Minn.): “If nobody cares about it very much, the special interest will get its way. . . . All of us, me, included are guilty of this.”
Former Rep. Mel Levine (D-Calif.) observed: “On the tax side, the appropriations side, the subsidy side, and the expenditure side, decisions are clearly weighted and influenced . . . by who has contributed to the candidates.”
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 our campaign finance laws. 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.
We expect this of our attorney general, of the EPA Administrator, of SEC commissioners, indeed, of an alphabet of public servants. Our democracy deserves that FEC Commissioners – those assigned to safeguard our elections – will respect, not deconstruct, our nation’s campaign finance laws.
ABOUT THE AUTHOR
E. Joshua Rosenkranz is executive director of the Brennan Center for Justice at New York University School of Law.