Bradley A. Smith is "unfit for the office," says Al Gore — so unfit that "this is the first time I’ve called for the defeat of a [Clinton] nominee." The President’s agreement to nominate Smith is "a betrayal of campaign finance reform," says Bill Bradley. Smith’s views are "extreme," and the nomination "reeks of the kind of backroom deal-making that turns Americans away from politics and government," says Common Cause. And even the nominator in chief says that Gore and Bradley "were right to condemn" Smith’s views (if not the nomination), because Smith "hates campaign finance reform."
At the center of this little storm is an earnest, articulate, libertarian, 41-year-old professor at Capital University Law School, in Columbus, Ohio. He was plucked from obscurity by Senate Republicans to fill one of three Republican slots on the six-member Federal Election Commission, because he is perhaps the most prolific scholarly critic of the wisdom and constitutionality of both current and proposed curbs on campaign contributions and spending.
Only the President can nominate people to sit on the FEC. But thanks to one of American government’s peculiar customs — enforced by the Senate leadership’s threat to hold the President’s judicial nominees hostage until Clinton gave them Smith — Clinton made the nomination on Feb. 9, ending many months of stalemate. Now Brad Smith is getting a taste of what nominees as diverse as Robert Bork, Clarence Thomas, Lani Guinier, and Zoe Baird have experienced: the hazards of becoming a symbol in one of Washington’s ideological wars.
At least Smith has been accused of no sin more villainous than writing law review articles. And perhaps it’s some consolation that Smith’s nominal sponsor, Senate Majority Leader Trent Lott, R-Miss. — who was momentarily stumped last summer when a talk-show host sprang the question "Who is Bradley Smith?" — must know who he is by now. (Smith’s real sponsor is Sen. Mitch McConnell, R-Ky., the Republican point man on campaign finance and the most implacable opponent of proposed reforms such as banning "soft money.")
"I remind myself," jokes Smith, "that this job is not really that important. … I never thought I would be a figure in the presidential campaign. [And] I don’t know of any other nominee who’s been lobbied against by the President who nominated him."
It’s only natural that advocates of curbing campaign giving and spending oppose Smith. And they have a point in arguing that a man who would junk most campaign finance restrictions as counterproductive, undemocratic, and an infringement of the First Amendment, and who doubts the legitimacy of much of the FEC’s work, is not the most logical candidate for a seat on the commission. But the vehemence with which some critics trash Smith’s views as beyond the pale of respectable discourse — one newspaper lightheartedly analogized him to both the Unabomber and to David Duke — suggests that passion may be eclipsing reason as the campaign finance reform debate heats up.
Which of the following propositions seems most radical?
1. "If I could think of a way constitutionally, I would ban negative ads."
2. "Special-interest groups that run political advertisements should pay their opponents to respond. … When issue ads are on, a 100 percent tax [should be] given to the other side."
3. "We have two important values in direct conflict: freedom of speech promoted through billions of dollars in 30-second negative ads and our desires for healthy campaigns in a healthy democracy. As the Court has framed it, you cannot have both."
4. "For most of our history, campaigns were essentially unregulated, yet democracy survived and flourished. However, since passage of the Federal Elections Campaign Act and similar state laws, the influence of special interests has grown, voter turnout has fallen, and incumbents have become tougher to dislodge. Low contribution limits have forced candidates to spend large amounts of time seeking funds. … The reformers’ response is that more regulation is needed. … [But] 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 first three statements come, respectively, from Sen. John McCain, R-Ariz. (on Dec. 22), former Sen. Bill Bradley, D-N.J. (on Sept. 21), and House Minority Leader Richard A. Gephardt, D-Mo. (in 1997, while proposing to amend the First Amendment to facilitate regulation of campaign finance). The fourth comes from Brad Smith (in a 1997 op-ed piece in The Wall Street Journal).
Radical is in the eye of the beholder. But something seems skewed when those who advocate sweeping and unprecedented new restrictions on the system of private campaign financing that has predominated for most of our history are lionized in the media as mainstream reformers, and those who (like Smith) advocate abolition of the current, post-Watergate restrictions are dismissed as extremists.
After all, what McCain, Bradley, and Gephardt want would allow officeholders to restrict criticism of themselves by imposing drastic new restrictions on rights that have been deemed protected by the First Amendment since long before Buckley vs. Valeo, the 1976 Supreme Court precedent that reformers revile for having barred restrictions on campaign spending and on most political advertising by independent groups.
I doubt Smith’s view — rejected by the Supreme Court both in Buckley and (even more emphatically) in its Jan. 24 decision in Nixon vs. Shrink Missouri Government PAC — that the First Amendment also bars caps on campaign contributions. But Smith is in respectable company: Justices Antonin Scalia, Clarence Thomas, and Anthony M. Kennedy have taken the same (or almost the same) position, as has the American Civil Liberties Union.
And some respected scholars and journalists who are hardly aligned with the Republican right share some of Smith’s doubts about both current and proposed campaign finance restrictions. Professor (and Dean) Kathleen M. Sullivan of Stanford University Law School, usually regarded as a liberal, writes: "The most troubling features of political fund-raising today are the unintended consequences of earlier efforts at campaign finance reform. … When the cure has been worse than the disease, the solution is not more doses of the same medicine." Jeffrey Rosen, who teaches at George Washington University Law School and writes for The New Republic, calls for "abandon[ing] the futile quest for mandatory spending restrictions once and for all." (Unlike Smith, Sullivan advocates partial public funding of elections, and Rosen does not rule it out.) Newsweek columnist Robert J. Samuelson writes that "you can have effective contribution limits or free speech — but not both."
To those who doubt that, if confirmed, Smith would do his duty to enforce the laws, he responds that he would "follow the courts" by enforcing limits on campaign contributions — a relatively simple thing to do — even though he disagrees with them. Smith adds that "the courts and I are largely in agreement, more than the courts are in agreement with my critics" on the issues that have proved most difficult for the FEC, such as determining when so-called "issue advertising" by independent advocacy groups that seek to help or hurt candidates can constitutionally be subjected to regulation. And the FEC has, in fact, repeatedly been chastised by courts for seeking to restrict activities protected by the First Amendment. "Following the law," argues Smith, "does not just mean pushing the limits of enforcement anywhere you can get away with it. It means showing restraint where the courts have ruled there are First Amendment problems."
So should Smith be confirmed? It seems a safe bet that whenever the law is debatable, he would oppose aggressive enforcement. This would add to the perceived toothlessness of the FEC, which Congress made weak by design, and which has already (correctly, in my view) upheld the legality under current law of the massive use of soft money during and since the 1996 elections to circumvent restrictions on large campaign contributions.
I would not want six Bradley Smiths on the FEC. But if this one can make a convincing case at his confirmation hearing that he would faithfully enforce all laws and regulations that have passed muster (or seem likely to pass muster) with the courts, I would lean toward confirming him. That’s because I would rather see on the FEC one zealous advocate of broad First Amendment freedom than slide toward a litmus test disqualifying all but enthusiasts for regulation from the delicate job of overseeing who can spend how much on political speech. One thing might be more dangerous than a weak FEC: a strong one.