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With all due respect for Senator McCain, whose commitment to reform is
unquestioned and who has supplied impressive leadership to the reform
movement, his comments, provided to this site by Trevor, do not make out a
coherent, well supported charge against Commissioner Smith. I have inserted
my responses and criticisms at appropriate points below.
-----Original Message-----
From: owner-election-law_gl@majordomo.lls.edu
To: rick.hasen@mail.lls.edu; election-law@majordomo.lls.edu
Sent: 6/1/2004 3:42 PM
Subject: Brad Smith and the FEC
Given the debate about how campaign finance reformers should view Brad
Smith. I thought it might be illuminating to post the actual words of
Senator John McCain in his Senate speech on the FEC and 527s. He does a
better job than anyone of explaining why, from the reform perspective,
Brad Smith's actions are inappropriate for an FEC Commissioner:
"The Chairman of the Federal Election Commission, Bradley Smith, claims
apparently some moral superiority on the issue of 527s because as a
Republican he stands in opposition to the Republican Party's effort to
ensure 527 groups comply with the law. While some may look upon his
views as principles, I can only conclude that they again illustrate the
same unfitness to serve on the Federal Election Commission he has shown
since he was appointed 5 years ago."
RESPONSE: This seems more than a little doubtful--that the Republicans are
attempting to "ensure 527 groups comply with the law." Who believes that
the Republican were motivated in this attack on 527s by solicitude for the
integrity of the campaign finance laws that they have as an institutional
matter opposed since the l970's? Yet the Senator McCain sets up here an
implausible contrast: principled Republicans and hypocritical Brad Smith.
"Despite claims that his contempt for the Federal elections laws was
merely that of an academic commentator and that he would uphold the laws
as passed by Congress if confirmed, Mr. Smith has made no secret since
arriving at the FEC of his disdain for the Federal Election Campaign Act
of 1974, as well as the Bipartisan Campaign Reform Act of 2002. He has
done so once again in the pending rulemaking."
RESPONSE: This is a dodge: it makes no mention of votes cast by Smith for
Advisory Opinions or enforcement outcomes compelled by the law but hardly
attractive to Smith if he "disdains" the law. And the sentence suggests
that because he might question the law, he would not vote to uphold it in
particular cases where its application, while unappealing, is clear. But
"disdaining" the law and refusing to uphold it are quite different, and the
sentence implies what it does not actually say and what its author cannot
support. Only at the end, in the reference to the political committee
status rulemaking, does McCain suggest the cause of his grievance against
Smith: the Commissioner's opposition to proposed restrictions on "527s".
The Senator does not say why this example should bear the weight of his
charge against Smith, and there are reasons why he could not, as discussed
toward the end below.
"Even after the Supreme Court decision in McConnell v. FEC, Mr. Smith has
gone out of his way to criticize the Court's decision and the law he is
supposed to enforce. In one public speech he said:
Now and then the Supreme Court issues a decision that cries out to the
public, ``We do not know what we are doing.'' McConnell is such a
decision."
RESPONSE: Smith seems to me entitled to critcize the Court's decision, as
others have done: even some strong supporters of the law concede that
McConnell is muddled and hardly a commanding and lucid contribution to the
constitutional law in this area. And once again: it does not follow that
criticism of the Court translates into refusal to uphold its decision. This
is the another pass by the Senator at an accusation, without the offer of
evidence, that Smith will not uphold the law because he questions its
constitutional basis.
"Further evidence of Mr. Smith's predilection can be found in an article
in the May 3 edition of National Review in which he writes:
Campaign reform passed Congress and was upheld by the Supreme Court
because groups hostile to freedom spent hundreds of millions of dollars
to create an intellectual climate in which free political participation
was viewed as a threat to democracy."
RESPONSE: This is a strong statement to be sure, but this is his view and it
does not equate to a refusal to uphold the law.
"This is perhaps the most inflammatory and inappropriate comment I have
ever seen by an individual who is supposed to be enforcing existing law,
affirmed in its constitutionality by the Supreme Court of the United
States of America. To assert that proreform groups had somehow
brainwashed Congress and the Supreme Court is simply pathetic and
solidifies my belief that Mr. Smith cannot administer our campaign
finance laws in good faith because he is incapable of putting his sworn
duties above his personal opinion."
RESPONSE: Now we have another intimation of refusal to enforce the law,
and still no proof offered.
"By the way, his treatment of Mr. Nobel, a witness before the FEC, was as
bullying and as cowardly as I have ever seen anyone conduct themselves
in our Nation's Capital and clearly was an abuse of his authority as
Chairman of the Commission."
RESPONSE: No one I know wants to see a confrontation like the one that
erupted between Smith and Noble at the hearing. Yet Commissioner apologized
publicly for his behavior--which the Senator does not mention. And whatever
might be said about the heated exchange, for which Smith has accepted
responsibility, this is not an "abuse of his authority" by any standard
understanding of the term. Surely Senator McCain does not suggest that
nothing like this has been seen in, say, Congressional hearings when Members
from time to time subject witnesses to rather rough treatment. I have seen
such behavior in that setting, and I cannot remember an apology, ever.
"Mr. Smith's views on the constitutionality of the Nation's campaign
finance laws have been repeatedly rejected by the Supreme Court."
RESPONSE: I am not sure what this means, but if read literally, it would
seem to overlook a number of cases in which the Court has expressed
reservations about the constitutionality of the law, at least as applied:
the NCPAC case (independent expenditures on behalf of publicly financed
presidential candidates), the MCFL case, the first Colorado Republican case.
The Court's jurisprudence in this area is hardly devoid of constitutional
concerns.
"Mr.Smith was dead wrong in his views that the Federal Election Campaign
Act
and its restrictions on contributions were unconstitutional, and Mr.
Smith was dead wrong in his views that BCRA was unconstitutional."
RESPONSE: Democrats who continue to complain about the 5-4 decision in Bush
v. Gore, and other 5-4 decisions of the Court on constitutional issues, do
not consider themselves "dead wrong" when the outcome swung on one vote.
What could "dead wrong" mean in this context?
"Mr. Smith seems to be incapable of accepting the fact that the Supreme
Court
of the United States, not Mr. Smith, is the last word on the
constitutionality of campaign laws and that it is his job as an FEC
Commissioner to carry out, not thwart, the Supreme Court's mandate."
RESPONSE: This is another unsupported suggestion of a refusal to uphold the
law. I doubt seriously that Brad Smith believes that his is the last word
on the constitutionality of the law, or that he imagines that it is his job
to "thwart" the Court's mandates.
"I do not deny that Mr. Smith is entitled to his personal views on the
issue of regulating 527s. I am saying, however, that he is failing to
fulfill his duties as the chairman of a Federal agency and one who is
sworn to uphold and enforce the law. Just as we would not tolerate the
appointment of a pacifist to be Chairman of the Joint Chiefs of Staff or
the Director of the FBI who believes the whole Penal Code should be null
and void, so we should not accept a Chairman of the FEC who opposes
campaign laws upheld as constitutional by the U.S. Supreme Court."
RESPONSE: I would agree that a true "pacifist" would be a mistaken choice
for Chairman of the Joint Chiefs, presumably because she could not, as a
matter of conviction, carry out her duties and maintain her personal
convictions. But Smith has said he would respect the law, regardless of his
personal and academic reservations and objections, and there is no basis for
disputing his commitment.
This is not simply a distinction between this case and the hypothetical: it
is the critical distinction. Catholic officeholders or judges who
profoundly oppose abortion as a matter of personal religious conviction
claim, and I for one tend to accept, that they can support the law of the
land. The same is true of Governors or judges who oppose the death penalty
in states that provide for it but who insist that they will not obstruct
imposition of this sentence pursuant to law and subject to all protections
and appeals. Personal conviction does not necessarily prevent the
fulfillment of one's constitutional duty as an elected or appointed
official. And to the extent that it is expected that ideological leaning
will influence the decision on "close" cases, this is to be expected. Both
parties seek to appoint to independent agencies individuals with specific
regulatory outlooks--some aggressive and others less so, to the point of
favoring de facto deregulation--and this is widely understood and accepted.
In Smith's case, he can agree to uphold the law while interpreting its
requirements in difficult or novel cases in the light of his constitutional
concerns. A "reform" Commissioner would do the same from a different
direction--a direction no more consonant with apparent statutory sanction or
Congressional "intent" than McCain suggests Smith's to be.
"Knowing of his opposition to the laws he was sworn to uphold, I cannot
fathom why Mr. Smith would have even accepted his current position in
the first place, certainly now that the Supreme Court has proven him
wrong and upheld the constitutionality of a law that he stated was
``clearly unconstitutional.'' It makes no sense. It makes no sense for
him to be charged with enforcing a law he so publicly opposes on policy
and legal grounds."
RESPONSE: This argument is stronger, albeit limited in significance and far
removed from the original charge. The Senator is here asking whether Smith
should have been confirmed if he takes the view that he does of the
constitutional and other shortcoming of the law. Senators could conclude on
this basis that Smith should not have taken the job, or that they should not
have voted to confirm him. But this is not the same as suggesting that
Smith would express his skepticism about this law by refusing to uphold it.
"I know if I were in Mr. Smith's shoes, I would do the honorable thing
and resign if I was so determined to carry on a crusade against Federal
regulation of campaign finance. I would leave the FEC position to be
filled by someone who believed in the job. Once in a while, we have a public
debate in Washington that serves as a perfect metaphor for the cynical way
in which business is sometimes done
here. The argument over whether and when the Federal Election Commission
should regulate new soft money fundraising groups provides us with one
of those moments. In it, we can see how badly our election watchdog has
served the public and the urgent need to fix it."
RESPONSE: Here the Senator rests his case on Smith's resistance to proposals
for new regulations on "527s". Of course, Smith's views on this issue was
shared by nonprofit groups, Members of Congress, some Republican campaign
finance experts, and some academics, otherwise strong supporters of the law,
who thought that the constitutional and statutory issues presented were
complex. Three Commissioners joined Smith in opposing the Thomas-Toner
proposal. To suggest that this a test of Smith's willingness to uphold the
law is to offer a sharply edited picture of the issue and the divisions it
provoked.
So while I appreciate Trevor's offer of these remarks as a lucid explanation
of Smith's direliction of duty, and with every measure of respect for
Senator McCain's strongly views on this subject, it seems that the remarks
make a charge but not a case.
-----Original Message-----
From: owner-election-law_gl@majordomo.lls.edu
To: rick.hasen@mail.lls.edu; election-law@majordomo.lls.edu
Sent: 6/1/2004 3:42 PM
Subject: Brad Smith and the FEC
Given the debate about how campaign finance reformers should view Brad
Smith. I thought it might be illuminating to post the actual words of
Senator John McCain in his Senate speech on the FEC and 527s. He does a
better job than anyone of explaining why, from the reform perspective,
Brad Smith's actions are inappropriate for an FEC Commissioner:
"The Chairman of the Federal Election Commission, Bradley Smith, claims
apparently some moral superiority on the issue of 527s because as a
Republican he stands in opposition to the Republican Party's effort to
ensure 527 groups comply with the law. While some may look upon his
views as principles, I can only conclude that they again illustrate the
same unfitness to serve on the Federal Election Commission he has shown
since he was appointed 5 years ago.
Despite claims that his contempt for the Federal elections laws was
merely that of an academic commentator and that he would uphold the laws
as passed by Congress if confirmed, Mr. Smith has made no secret since
arriving at the FEC of his disdain for the Federal Election Campaign Act
of 1974, as well as the Bipartisan Campaign Reform Act of 2002. He has
done so once again in the pending rulemaking.
Even after the Supreme Court decision in McConnell v. FEC, Mr. Smith has
gone out of his way to criticize the Court's decision and the law he is
supposed to enforce. In one public speech he said:
Now and then the Supreme Court issues a decision that cries out to the
public, ``We do not know what we are doing.'' McConnell is such a
decision.
Further evidence of Mr. Smith's predilection can be found in an article
in the May 3 edition of National Review in which he writes:
Campaign reform passed Congress and was upheld by the Supreme Court
because groups hostile to freedom spent hundreds of millions of dollars
to create an intellectual climate in which free political participation
was viewed as a threat to democracy.
This is perhaps the most inflammatory and inappropriate comment I have
ever seen by an individual who is supposed to be enforcing existing law,
affirmed in its constitutionality by the Supreme Court of the United
States of America. To assert that proreform groups had somehow
brainwashed Congress and the Supreme Court is simply pathetic and
solidifies my belief that Mr. Smith cannot administer our campaign
finance laws in good faith because he is incapable of putting his sworn
duties above his personal opinion.
By the way, his treatment of Mr. Nobel, a witness before the FEC, was as
bullying and as cowardly as I have ever seen anyone conduct themselves
in our Nation's Capital and clearly was an abuse of his authority as
Chairman of the Commission.
Mr. Smith's views on the constitutionality of the Nation's campaign
finance laws have been repeatedly rejected by the Supreme Court. Mr.
Smith was dead wrong in his views that the Federal Election Campaign Act
and its restrictions on contributions were unconstitutional, and Mr.
Smith was dead wrong in his views that BCRA was unconstitutional. Mr.
Smith seems to be incapable of accepting the fact that the Supreme Court
of the United States, not Mr. Smith, is the last word on the
constitutionality of campaign laws and that it is his job as an FEC
Commissioner to carry out, not thwart, the Supreme Court's mandate.
I do not deny that Mr. Smith is entitled to his personal views on the
issue of regulating 527s. I am saying, however, that he is failing to
fulfill his duties as the chairman of a Federal agency and one who is
sworn to uphold and enforce the law. Just as we would not tolerate the
appointment of a pacifist to be Chairman of the Joint Chiefs of Staff or
the Director of the FBI who believes the whole Penal Code should be null
and void, so we should not accept a Chairman of the FEC who opposes
campaign laws upheld as constitutional by the U.S. Supreme Court.
Knowing of his opposition to the laws he was sworn to uphold, I cannot
fathom why Mr. Smith would have even accepted his current position in
the first place, certainly now that the Supreme Court has proven him
wrong and upheld the constitutionality of a law that he stated was
``clearly unconstitutional.'' It makes no sense. It makes no sense for
him to be charged with enforcing a law he so publicly opposes on policy
and legal grounds.
I know if I were in Mr. Smith's shoes, I would do the honorable thing
and resign if I was so determined to carry on a crusade against Federal
regulation of campaign finance. I would leave the FEC position to be
filled by someone who believed in the job.
Once in a while, we have a public debate in Washington that serves as a
perfect metaphor for the cynical way in which business is sometimes done
here. The argument over whether and when the Federal Election Commission
should regulate new soft money fundraising groups provides us with one
of those moments. In it, we can see how badly our election watchdog has
served the public and the urgent need to fix it.
The Chairman of the Federal Election Commission, Bradley Smith, claims
apparently some moral superiority on the issue of 527s because as a
Republican he stands in opposition to the Republican Party's effort to
ensure 527 groups comply with the law. While some may look upon his
views as principles, I can only conclude that they again illustrate the
same unfitness to serve on the Federal Election Commission he has shown
since he was appointed 5 years ago.
Despite claims that his contempt for the Federal elections laws was
merely that of an academic commentator and that he would uphold the laws
as passed by Congress if confirmed, Mr. Smith has made no secret since
arriving at the FEC of his disdain for the Federal Election Campaign Act
of 1974, as well as the Bipartisan Campaign Reform Act of 2002. He has
done so once again in the pending rulemaking.
Even after the Supreme Court decision in McConnell v. FEC, Mr. Smith has
gone out of his way to criticize the Court's decision and the law he is
supposed to enforce. In one public speech he said:
Now and then the Supreme Court issues a decision that cries out to the
public, ``We do not know what we are doing.'' McConnell is such a
decision.
Further evidence of Mr. Smith's predilection can be found in an article
in the May 3 edition of National Review in which he writes:
Campaign reform passed Congress and was upheld by the Supreme Court
because groups hostile to freedom spent hundreds of millions of dollars
to create an intellectual climate in which free political participation
was viewed as a threat to democracy.
This is perhaps the most inflammatory and inappropriate comment I have
ever seen by an individual who is supposed to be enforcing existing law,
affirmed in its constitutionality by the Supreme Court of the United
States of America. To assert that proreform groups had somehow
brainwashed Congress and the Supreme Court is simply pathetic and
solidifies my belief that Mr. Smith cannot administer our campaign
finance laws in good faith because he is incapable of putting his sworn
duties above his personal opinion.
By the way, his treatment of Mr. Nobel, a witness before the FEC, was as
bullying and as cowardly as I have ever seen anyone conduct themselves
in our Nation's Capital and clearly was an abuse of his authority as
Chairman of the Commission.
Mr. Smith's views on the constitutionality of the Nation's campaign
finance laws have been repeatedly rejected by the Supreme Court. Mr.
Smith was dead wrong in his views that the Federal Election Campaign Act
and its restrictions on contributions were unconstitutional, and Mr.
Smith was dead wrong in his views that BCRA was unconstitutional. Mr.
Smith seems to be incapable of accepting the fact that the Supreme Court
of the United States, not Mr. Smith, is the last word on the
constitutionality of campaign laws and that it is his job as an FEC
Commissioner to carry out, not thwart, the Supreme Court's mandate.
I do not deny that Mr. Smith is entitled to his personal views on the
issue of regulating 527s. I am saying, however, that he is failing to
fulfill his duties as the chairman of a Federal agency and one who is
sworn to uphold and enforce the law. Just as we would not tolerate the
appointment of a pacifist to be Chairman of the Joint Chiefs of Staff or
the Director of the FBI who believes the whole Penal Code should be null
and void, so we should not accept a Chairman of the FEC who opposes
campaign laws upheld as constitutional by the U.S. Supreme Court.
Knowing of his opposition to the laws he was sworn to uphold, I cannot
fathom why Mr. Smith would have even accepted his current position in
the first place, certainly now that the Supreme Court has proven him
wrong and upheld the constitutionality of a law that he stated was
``clearly unconstitutional.'' It makes no sense. It makes no sense for
him to be charged with enforcing a law he so publicly opposes on policy
and legal grounds.
I know if I were in Mr. Smith's shoes, I would do the honorable thing
and resign if I was so determined to carry on a crusade against Federal
regulation of campaign finance. I would leave the FEC position to be
filled by someone who believed in the job."
THUS, the distinction made by Fred Wertheimer in the NY Times letter
pages was in keeping with Sen. McCain's views that what is
distictinctive about Chairman Smith's views is not just their
consistency, but the fact that they consistently indicate contempt for
the law he is supposed to be enforcing.
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