Mr. Smith raises fair points. I have never doubted that his opposition to campaign regulation is principled. He thinks existing laws unduly inhibit core First Amendment speech. Reformers think they promote core First Amendment values. Such disagreement represents democratic dialog at its best.

With respect to his critiques, a great deal depends on the level of specificity with which one chooses to view the analogies. As a matter of values and accountability, I think connecting the current scandals in Washington to the need for committed administrators of election laws---at all levels---is entirely proper. Those laws are meant to prevent commercial trade in political favors.  The current scandals underscore the persistent danger of such corruption.  With my subjective view that these issues are connected, I am certain he disagrees.  Fair enough.

The primary intent of the piece is to highlight what, in my view, makes the lack of a public confirmation process troubling. Given that: (1) a full one-half of the commission was appointed; (2) the vacancies had technically existed for months; (3) in the context of the FEC, the interests of voters and politicians have never been (and will never be) perfectly aligned; and (4) each of the particular individuals ultimately appointed had at least one trait the exploration of which would have provided classic confirmation fare, I strongly believe that the voters would have benefited from a more transparent process.  On those points, I hope that even the diametrically opposed might find some common ground.  Either way, I have only respect and consideration for Mr. Smith's views, even if I almost always disagree.  Best regards.

James Sample
Associate Counsel
Brennan Center for Justice
212.992.8648 (direct)
james.sample@nyu.edu
www.brennancenter.org 

"Smith, Brad" <BSmith@law.capital.edu> 01/05/06 2:25 PM >>>

More dismay from James Sample writing Croines at the FEC <http://www.tompaine.com/articles/20060105/cronies_at_the_fec.php>  for Tompaine.com.

Where to begin? Let's start with the first sentence of Samples' article:
 

Last night, with lobbyist Jack Abramoff having entered his second guilty plea in as many days, was a moment begging for integrity in government. 

 
Ah, Jack Abramoff, the gift that keeps on giving.  What, pray tell, does Jack Abramoff entering a guilty plea have to do with FEC appointments - or even the views of FEC appointees?  Well, it is a scandal, of course, and where's there's a scandal, there's an excuse for the campaign finance lobby to swing into gear.  
 

Instead, Congress and the White House colluded to deny the American people a public confirmation process for the individuals charged with regulating federal elections. Their action was shameless and straightforward: they used the president's recess appointment power to sneak through a slate of politically cozy Federal Election Commissioners who will further weaken the already toothless FEC.  

 
We documented two weeks ago the disingenuity of the "reform" lobby in this argument, but we do note that at least Brennan isn't caught with its pants down - unlike the Campaign Legal Center, they weren't lobbying for recess appointments to the FEC in 2002.  Of course, there are a lot of assumptions, a lot of assertions, and very little enlightenment, in this short paragraph.
 

The indictment of former House Majority Leader Tom DeLay; the metastasizing investigation into the web-spinning of lobbyist Jack Abramoff; and the revelation that Representative Randy "Duke" Cunningham accepted over $2.4 million in bribes from a defense contractor all tended in favor of strengthening the FEC...

 
Of course, none of these events have to do with even alleged violations of the Federal Election Campaign Act.  Mr. Sample may as well have written, "the mine disaster in West Virginia; Hurricane Katrina, and Texas's exciting victory over USC all tended in favor of strengthening the FEC."  Then at least the humor and cynicism would be more obvious. 
 
Further down:
 

few things unite Republicans and Democrats like incumbency, 

 
>From the brief signed by the Brennan Center in McConnell v. FEC: "[D]eference... deserves particular weight in the context of campaign finance reform, an area in which Congress has a peculiar expertise.  Each Member of Congress brings substantial personal experience to this issue.... etc. etc."   
 
So let me get this straight: Congress gets great deference in passing the law, because of course they would never use it to entrench themselves as incumbents - but on the other hand, because "few things unite [Congress] like incumbency," we should be very suspicious of anyone selected for the FEC.
 
Further down:
 

As if to underscore Washington's current culture of corruption, one of the Republican appointees, Hans von Spakovsky, played a critical role in upholding DeLay's controversial Texas redistricting plan. Along with other Bush appointees at the Department of Justice, Von Spakovsky overruled the unanimous opinions of DOJ's staff attorneys who concluded that the plan violated the Voting Rights Act. 

Well, there may be many arguments against a political official actually exercising the authority given to him, and it may well be that Spakovsky (and others - apparently this was not his decision alone) was wrong. But corrupt? A symptom of a "culture of corruption?"  A little stretch, perhaps?   Anyway, we continue further down:
 

Questions of federal election law are complex and important. 

 
Indeed they are.  Wouldn't it be nice to help the the public to understand them, rather than conflating them with Jack Abramoff, Duke Cunningham, Voting Rights Decisions, and the indictment of Tom DeLay.
 

The FEC requires qualified, committed commissioners, not cronies who place politics ahead of principle.

 
At least the Brennan Center has something nice to say about me, even if they won't say it.  Thank you.
 
- Brad Smith
Professor of Law
Capital University Law School