[Senate Hearing 106-391]
[From the U.S. Government Publishing Office]



 
             NOMINATIONS TO THE FEDERAL ELECTION COMMISSION

=======================================================================

                                HEARINGS

                               before the

                              COMMITTEE ON
                        RULES AND ADMINISTRATION
                          UNITED STATES SENATE

                       ONE HUNDRED FIFTH CONGRESS

                             FIRST SESSION

                                   on

THE NOMINATIONS DANNY LEE McDONALD, OF OKLAHOMA, AND BRADLEY A. SMITH, 
       OF OHIO, TO BE MEMBERS OF THE FEDERAL ELECTION COMMISSION


                             MARCH 8, 2000

                               ----------                              

    Printed for the use of the Committee on Rules and Administration




                 COMMITTEE ON RULES AND ADMINISTRATION

                  MITCH McCONNELL, Kentucky, Chairman

JESSE HELMS, North Carolina          CHRISTOPHER J. DODD, Connecticut
TED STEVENS, Alaska                  ROBERT C. BYRD, West Virginia
JOHN WARNER, Virginia                DANIEL K. INOUYE, Hawaii
THAD COCHRAN, Mississippi            DANIEL PATRICK MOYNIHAN, New York
RICK SANTORUM, Pennsylvania          DIANNE FEINSTEIN, California
DON NICKLES, Oklahoma                ROBERT G. TORRICELLI, New Jersey
TRENT LOTT, Mississippi              CHARLES E. SCHUMER, New York
KAY BAILEY HUTCHISON, Texas
                                 ------                                

                 TAMARA S. SOMERVILLE,  Staff Director
      KENNIE L. GILL,  Democratic Staff Director and Chief Counsel
                    G. HUNTER BATES,  Chief Counsel
                         ANDREW SIFF,  Counsel
                  LORY G. BRENEMAN,  Legislative Clerk
                            C O N T E N T S

                             March 8, 2000

Opening statement of:
    Hon. Mitch McConnell, chairman, a U.S. Senator from the State 
      of Kentucky................................................     6
    Hon. Christopher J. Dodd, ranking member, a U.S. Senator from 
      the State of Connecticut...................................     9
    Hon. Charles E. Schumer, member, a U.S. Senator from the 
      State of New York..........................................    28
Testimony of:
    Danny Lee McDonald, of Oklahoma, nominated to be a member of 
      the Federal Election Commission............................    12
    Bradley A. Smith, of Ohio, nominated to be a member of the 
      Federal Election Commission................................    13
Prepared statement of:
    Danny Lee McDonald, of Oklahoma, nominated to be a member of 
      the Federal Election Commission............................    13
     Bradley A. Smith, of Ohio, nominated to be a member of the 
      Federal Election Commission................................    17
Introductory remarks
    Hon. Don Nickles, member, a U.S. Senator from the State of 
      Oklahoma...................................................     2
    Hon. George V. Voinovich, a U.S. Senator from the State of 
      Ohio.......................................................     3
    Hon. Mike DeWine, a U.S. Senator from the State of Ohio......     5
Closing Remarks
    Hon. Mitch McConnell, chairman, a U.S. Senator from the State 
      of Kentucky................................................    43
Appendices
    Appendix 1. The Columbus Dispatch article dated Feb. 13, 2000    46
    Appendix 2. Letters in support of Bradley A. Smith...........    48
    Appendix 3. Letter from Manuel S. Klausner, P.C. dated Feb. 
      29, 2000...................................................   126
    Appendix 4. Statement for the record submitted by Common 
      Cause......................................................   131
    Appendix 5. Statement for the record submitted by Democracy 
      21.........................................................   134


             NOMINATIONS TO THE FEDERAL ELECTION COMMISSION

                              ----------                              


                        WEDNESDAY, MARCH 8, 2000

                              United States Senate,
                     Committee on Rules and Administration,
                                                   Washington, D.C.
    The committee met, pursuant to notice, at 9:33 a.m., in 
Room SR-301, Russell Senate Office Building, Hon. Mitch 
McConnell, chairman of the committee, presiding.
    Present: Senators McConnell, Warner, Nickles, Dodd, and 
Schumer.
    The Chairman. Good morning. I want to thank the nominees, 
Commissioner McDonald and Professor Smith, for adjusting their 
schedules to be with us this morning. As the nominees are 
aware, we had originally tried to schedule this hearing for 
Wednesday, February 23rd, but ultimately postponed the hearing 
at the request of my distinguished colleagues on the other side 
of the aisle and at the request of some outside groups like 
Common Cause and the Brennan Center.
    I might add that we also had requests from other groups to 
testify in opposition to each of the nominees: the National 
Right to Life Committee, the National Legal Policy Center, as 
well as Common Cause and the Brennan Center.
    The committee, however, decided to stick with our tradition 
and allow only the nominees to testify. I would encourage any 
outside groups who have written comments to submit that 
testimony for the record today.
    It is my understanding that Senator Nickles and Senator 
Voinovich are on the way, and we need one more Senator to swear 
you fellows in, and we hope that they will be here momentarily. 
In the meantime, the senior Senator from Virginia will tell 
jokes.
    [Laughter.]
    Senator Dodd. Give an analysis of last night. What happened 
there, John?
    Senator Warner. I am not sure that when I was privileged to 
be chairman of this committee we indulged in that great a 
degree of humor. But, anyway, this is a very important 
occasion, Mr. Chairman, as you well know.
    The Chairman. Yes.
    Senator Warner. We have waited a very long time for the 
opportunity to re-establish the membership of this Commission 
so that t can carry out its statutory responsibility. And I 
wish to commend the chairman and the ranking member for 
facilitating this hearing and getting it underway.
    I see the presence of our distinguished leader here, so I 
will refrain from further comment and yield back.
    The Chairman. All right. Senator Nickles has joined us, and 
now that we have four, we will swear the witnesses in. If you 
fellows would stand and raise your right hand and repeat after 
me? Actually, you don't need to repeat after me. You can just 
say, ``I do.''
    We are not going to swear you in, Senator Voinovich. You 
can sit down.
    This is for Commissioner McDonald and Professor Smith. Do 
you swear or affirm that the testimony that you are about to 
give is the truth, the whole truth, and nothing but the truth, 
so help you God?
    Mr. McDonald. I do.
    Mr. Smith. I do.
    The Chairman. Senator Voinovich and Senator Nickles are 
here to introduce the nominees from their States. I will call 
first, in order of seniority, on our colleague, Senator 
Nickles.

STATEMENT OF HON. DON NICKLES, A UNITED STATES SENATOR FROM THE 
                       STATE OF OKLAHOMA

    Senator Nickles. Mr. Chairman, thank you very much, and I 
appreciate your having this hearing, as well as Senator Dodd 
and Senator Warner, and I am pleased today to introduce a 
friend of mine, a nominee to the Federal Election Commission 
and also a fellow Oklahoman, Danny McDonald.
    Danny is a native of Oklahoma. He was born in Tulsa, and he 
has had an extensive career in public service, including 
election policy and administration, prior to coming to 
Washington, D.C. He is married to Gail McDonald, who also has a 
distinguished career in public service, served on the ICC, and 
they also have a daughter, Jill.
    Is Jill here, by any chance? She is not here.
    Personally, I think that Gail should be appointed to this 
position instead of Danny, but the President didn't call me and 
ask me that.
    Originally, Danny McDonald was nominated by President 
Reagan. He has served on the Federal Elecion Commission since 
1982. He served as Chairman in 1983 and 1989 and 1995.
    Prior to his position at FEC, Danny McDonald served as the 
general administrator for the Oklahoma Corporation Commission, 
the secretary of the Tulsa Election Board, and as chief clerk 
in the Tulsa County Clerk's Office. Prior to his professional 
career, he attended my alma mater, Oklahoma State University, 
before receiving his master's from Harvard and his law degree 
from Columbia.
    [Laughter.]
    Senator Nickles. You thought that was funny?
    [Laughter.]
    Senator Nickles. I don't know what was funny about that, 
law degree from Columbia. I think that is impressive.
    I have known Danny for many years. Many times we differed 
on ideas on campaign election policy, but I consider him a good 
friend, and I would hope that the Senate would move forward 
both with his nomination and the nomination of Mr. Smith as 
expediently as possible and move forward positively on both 
nominations.
    So, Mr. Chairman, thank you very much for having this 
hearing, and I welcome both of our nominees to the Rules 
Committee.
    The Chairman. Thank you, Senator Nickles.
    Now I would like to call on Senator Voinovich for his 
comments about his constituent.

STATEMENT OF HON. GEORGE V. VOINOVICH, A UNITED STATES SENATOR 
                     FROM THE STATE OF OHIO

    Senator Voinovich. Chairman, it is good to be with you this 
morning. I am here this morning to present Professor Bradley A. 
Smith, who has been nominated to serve as a Commissioner of the 
Federal Election Commission. As the chairman is aware, Senator 
De Wine is unable to be here with me this morning in order to 
present Professor Smith; however, I understand, Mr. Chairman, 
that you have a copy of Senator DeWine's statement.
    The Chairman. I do have his statement in support of 
Professor Smith.
    Senator Voinovich. He is back in Ohio, coming back today. 
He had a primary yesterday.
    I would like to take a moment and recognize Professor 
Smith's family who has joined us today: his wife, Julie, who is 
ehind me, and their two daughters, Eleanor and Emma. And I 
would also like to recognize his brother, Dana Smith, who is 
also here with us today. It is nice to have members of the 
family here with you.
    There is an old saying that goes, Mr. Chairman, you can't 
choose where you were born, but you can choose where you live. 
That phrase is certainly applicable to Brad Smith. Professor 
Smith is a native Michigander, born in Wyandotte, Michigan, and 
having grown up in suburban Detroit, the town of Trenton, 
Michigan. I am pleased to report, however, that he is of good 
Ohio stock. Both of his parents were born in Columbus where 
they are now retired. Columbus is also where Professor Smith 
now lives.
    Brad attended the public school system in his home town and 
entered Kalamazoo College in 1976. At Kalamazoo, he earned a 
bachelor's degree and graduated cum laude in 1980, and after 
graduation entered the Foreign Service, spending 2 years as 
vice counsel of the U.S. Embassy in Ecuador.
    In 1983, he left the Foreign Service and, after a short 
stint in the private sector selling insurance, pursued a law 
degree at Harvard University. It was at Harvard where he first 
became interested in campaign law. After he graduated cum laude 
from Harvard Law School in 1990, Dr. Smith joined the law firm 
of Vorys, Sater, Seymour & Pease in Columbus, and in 1993 was 
offered a teaching position at Capital University Law School in 
Columbus, Ohio, where he is currently a full professor of law.
    Professor Smith has quite an impressive list of 
accomplishments covering a wide variety of media, with the 
majority of his work focused on election and campaign finance 
law. In all, he was written one book, which is due out this 
year, penned nine Law Review publications, contributed three 
chapters to other books, compiled 14 studies and reports, and 
made seven journal and periodical contributions. He has had 
over 20 newspaper columns published in such papers as the Wall 
Street Journal, USAToday, the Columbus Dispatch, Washington 
Times Detroit News, Chicago Tribune, and dozens of other 
columns published in smaller daily and weekly papers.
    He has written two amicus briefs and participated in 
numerous speaking engagements, presentations, radio and 
television news interviews.
    Professor Smith is regarded as a leading scholar on the 
issue of campaign finance. In fact, in the most recent Supreme 
Court ruling on campaign finance, Nixon v. Missouri Government, 
Professor Smith's work was cited in both the majority and in 
the dissenting opinions. There is no question that he knows the 
issues that he would face as an FEC Commissioner. That is 
really important. He knows the subject. His knowledge has 
generated respect from his peers as well as professional and 
editorial support for his nomination.
    Indeed, the Columbus Dispatch has given its unequivocal 
support to Professor Smith, saying in a February 13th 
editorial, ``The Senate should move quickly to confirm Smith, 
who is one of this Nation's foremost constitutional scholars 
and an expert on election law and free speech.''
    In addition, Professor Smith has received letters of 
support from a number of law professors, most notably, 
Professor Daniel T. Coble. Professor KobilCoble is a colleague 
of Professor Smith's at Capital University as well as a former 
governing board member of Ohio Common Cause.
    In a letter to you, Mr. Chairman, Professor Kobil states 
that although he does not share all of Professor Smith's view 
on campaign finance reform, ``he is, in my view, an outstanding 
candidate for the position and certainly should be confirmed.''
    In the same letter, in apparent response to charges that 
Professor Smith has a disregard for the rule of law and the 
continued function of the FEC, Professor Kobil wrote--and I 
think this is important for the committee to listen to these 
words: ``Having come to know Brad personally, I have no doubt 
that his critics are wrong in suggesting that as an FEC 
Commissioner Brad would refuse to enforce Federal campaign 
regulations because he disagrees with te laws. I have observed 
Brad's election law class on several occasions, and he has 
always took the task of educating his students about the 
meaning and scope of election laws very seriously. I have never 
observed him denigrating or advocating skirting State or 
Federal election laws, even though he may have personally 
disagreed with some of those laws. Indeed, several times in 
class he admonished students who seemed to be suggesting 
ignoring what they considered overly harsh election laws. Brad 
is an ethical attorney who cares deeply about the rule of law, 
and I am confident that he will fairly administer the laws he 
is charge with enforcing as Commissioner.''
    I would also like to insert the Columbus editorial with 
your permission, Mr. Chairman. [See Appendix 1.]
    Mr. Chairman, several of our Senate colleagues have already 
expressed their disapproval of Professor Smith as the next FEC 
Commissioner based on opinions he holds regarding campaign 
finance law. In their view, his statements and writings are 
enough to disqualify him from consideration, even before the 
benefit of this hearing. I know the Senate better than that. 
However, I don't believe that our colleagues have received all 
the facts regarding Professor Smith to make such a judgment.
    I have every confidence that today's hearing will give 
Senators an ample opportunity to question Professor Smith on 
his views on election law. I also believe it was provide 
Professor Smith a chance to clarify his views and dispel any 
possible misconceptions regarding his service as an FEC 
Commissioner.
    It is my hope that today's hearing will produce a lively 
and thought-provoking exchange of views that will be of benefit 
to both the nominee and my colleagues. And I want to underscore 
again: I have been in this business a long time, over 34 years. 
I have taken an oath of office to uphold the Constitution and 
to apply the laws of my State and of this country. And there 
are many of these that I don't agree with. But the fact of the 
matter is I have upheld them conscientiouly. And I think that 
because someone may disagree with the law, that doesn't mean 
that they can't honorably discharge that law. As a matter of 
fact, I have observed on many occasions where people think that 
maybe they have a difference with it, they even are more 
scrupulous in terms of fulfilling what the law--not only the 
letter but also the spirit of the law. And I would hope that 
the Senate gives this man an opportunity to have his case heard 
and that they will, after giving consideration to that, find 
him qualified to be--
    The Chairman. Senator Voinovich, on that point, it is 
interesting to note that we are all here in Congress frequently 
lectured by Federal judges about the laws that we pass with 
regard to sentencing, this suggestion that we are loading up 
the jails with people and taking away the discretion of judges. 
So your point is well made. We are frequently lectured by 
people who disagree with things we do here, who nevertheless 
uphold the law.
    Senator Voinovich. Thank you, Mr. Chairman.
    The Chairman. Thank you, Senator Voinovich. As you 
indicated in your introduction, the senior Senator from Ohio, 
Senator DeWine, also supports the nominee, and I would ask 
unanimous consent that his statement appear in the record after 
Senator Voinovich's.
    [The prepared statement of Senator DeWine follows:]

  Introduction of Professor Brad Smith by Senator Mike DeWine

    Mr. Chairman, Senator Dodd, thank you for giving me the 
opportunity to say a few words today on behalf of Mr. Bradley 
Smith, who has been nominated to be a member of the Federal 
Elections Commission (FEC).
    As a former practicing attorney, Professor Smith has gained 
first-hand knowledge of our election laws. Since 1994, Mr. 
Smith has been a member of the faculty of Capital Law School in 
Columbus, Ohio, and is a nationally recognized scholar in the 
field of election law, with an emphasis on campaign finance 
issues. He has written extensively on the subject and has been 
cited in legal briefs to and opinions of the Supreme Court.
    I have received a number of letters supporting Professor 
Smith, particularly from his colleagues--the people who know 
him well on a personal and professional level. Those who know 
Professor Smith cite his commitment and dedication to the rule 
of law. One colleague wrote that `` the first and most 
important attribute to appreciate in Professor Smith is his 
integrity. He has a real sense of the moral obligations of 
whatever office he holds.'' I have even received letters of 
support from colleagues who disagree with Professor Smith's 
views on election law. One wrote that Professor Smith's 
``critics are wrong in suggesting that as a FEC Commissioner, 
Brad would refuse to enforce federal campaign regulations 
because he disagrees with the laws.''
    Professor Smith also has demonstrated a strong sensitivity 
to the role of Congress as the principle architect of election 
policy, and has stated repeatedly that election laws should be 
enforced by the Commission, even if the Commissioners 
personally do not agree with them. After his experience in 
teaching and practicing law, Professor Smith understands and 
respects our system of government.
    Again, I thank the Chairman and Ranking Member for holding 
today's hearing.
    The Chairman. All right. Well, thank you, Senator 
Voinovich. We appreciate very much your being here.
    Senator Warner. Before the Senator leaves, Senator 
Voinovich--he is gone. He gave a very good statement on behalf 
of Mr. Smith. We have heard a lot of statements in this room 
and in other hearing rooms, but he expressed that in a 
heartfelt way.
    The Chairman. Thank you, Senator Warner.
    It is my distinct honor to preside over this hearing today, 
and let me say at the outset that I believe Congress has given 
the Federal Election Commission one of the toughest Federal 
mandates in all of America--that is, to regulate the political 
speech of individuals, groups, and parties without iolating the 
First Amendment guarantee of freedom of speech and association.
    Over the past quarter century, the FEC has had difficulty 
maintaining this all-important balance and has been chastised, 
even sanctioned, by the Federal courts for overzealous 
prosecution and enforcement--overzealous prosecution and 
enforcement that treated the Constitution with contempt and 
trampled the rights of ordinary citizens.
    In light of the FEC's congressionally mandated balancing 
act and the fundamental constitutional freedoms at stake, 
Congress established the balanced, bipartisan, six-member 
Federal Election Commission. The law and practice behind the 
FEC nominations process has been to allow each party to select 
its FEC nominees. Republicans pick Republicans and Democrats 
pick Democrats.
    As President Clinton said a few weeks ago, this is ``the 
plain intent of the law'' which requires that it be bipartisan 
and by all tradition that the majority--referring to the 
majority here in the Senate--make the nomination.
    Typically, Republicans complain that the Democratic 
nominees prefer too much regulation and too little freedom, 
while Democrats complain that the Republican nominees prefer 
too little regulation and too much freedom. Ultimately, both 
sides bluster and delay a bit, create a little free media 
attention, and then move the nominees forward. In fact, the 
Senate has never voted down another party's FEC nomination in a 
floor vote or even a staged filibuster on the Senate floor.
    At the end of the day, the process serves the country well. 
The FEC gets a few Commissioners that naturally lean toward 
regulation and a few Commissioners that naturally lean toward 
constitutionally protected freedoms. And the country gets a 
six-member, bipartisan Federal Election Commission to walk the 
critical fine line between regulation and freedom.
    Let me say that I sincerely hope that we can uphold the law 
and tradition that President Clinton invoked when he sent these 
two nominees to the Senate. After all, Professor Smiths views 
are similar to the Republicans who have gone before him, and 
Commissioner McDonald's views are similar to those he himself 
has held for the past 18 years as one of the Democrats' 
Commissioners at the FEC.
    In fact, Commissioner McDonald's views are so consistent 
with and helpful to the Democratic Party that former 
Congressman and currently top adviser to Gore campaign chairman 
Tony Coelho has hailed Commissioner McDonald as ``the best 
strategic appointment'' the Democrats have ever made.
    So notwithstanding the bluster and delay, these two 
nominees largely represent their party's long line of past FEC 
Commissioners.
    The questions before the committee this morning should be: 
Is each nominee experienced, principled, and ethical? And will 
the FEC continue to be a balanced, bipartisan Commission?
    I would like to dedicate the remainder of my opening 
comments this morning to reading a few excerpts from the flood 
of letters I have received in support of Professor Smith since 
he was nominated. And I want to say to you directly, Professor 
Smith, that the professional and personal esteem in which you 
are held by constitutional law scholars and election law 
experts is evidenced by the dozens of letters I have received 
urging the Senate to confirm you.
    I would like to ask unanimous consent that these letters of 
support that I have here this morning be entered into the 
record, and I ask my staff to make copies available for all 
members of the committee and the press. [See Appendix 2.]
    Even staunch advocates of reform, including two past board 
members of Common Cause, have written in support of your 
nomination. These many letters attest to the central role your 
scholarship has played in mainstream thought about campaign 
finance regulation and make clear that no one who knows you 
personally or professionally, including self-avowed reformers, 
believes that you will fail to enforce the election laws as 
enacted by Congress or to fulfill your duties in a fair and 
even-handed manner.
    All of the scholars that have written urging the 
confirmation of Professor Smith believe that his scholarly work 
is not radical but rather well grounded in mainstream First 
Amendment doctrines and case law. Let me share with you a few 
examples, and Senator Voinovich actually has referred to some 
of these already.
    Professor Daniel Kobil, at the Capital Law School, a reform 
advocate and past director of Common Cause, Ohio. This is a 
quote from his letter. ``Groups seeking to expand campaign 
regulations dramatically might have misgivings about Brad's 
nomination. However, I believe that much of that opposition is 
based not on what Brad has said or written about campaign 
finance regulations, but on crude caricatures of his ideas that 
have been circulated.''
    ``I think that the FEC and the country, in general, will 
benefit from Brad's diligence, expertise and solid principles 
if he is confirmed to serve on the Commission.''
    Professor Larry Sabato, Director of the University of 
Virginia Center for Governmental Studies, who served on the 
Bipartisan Campaign Finance Reform Group, appointed by Senator 
Dole and Senator Mitchell in 1990, had this to say: ``Contrary 
to some of the misinformed commentary about Professor Smith's 
work and views, his research and opinions in the field of 
campaign finance are mainstream and completely acceptable. For 
example, Professor Smith has argued in several of his academic 
papers for a kind of deregulation of the election laws in 
exchange for stronger disclosure of political giving and 
spending.''
    ``This is precisely what I have written about and supported 
in a number of publications as well. Bradley, certainly 
supports much of the work of the Federal Election Commission 
and understands its importance to public confidence in our 
system of elections. I have been greatly disturbed to see that 
some are not satisfied to disagree with Professor Smith and 
make those objections known but believe it is necessary to 
vilify the Professor in almost a McCarthyite way. I do not use 
that historically hyper-charged wordlightly but it applies in 
this case. Any academic with a wide-ranging portfolio of views 
on a controversial subject could be similarly tarred by groups 
on the right or the left.''
    Professor John Copeland Nagle, of the Notre Dame Law 
School. ``Professor Smith's view is shared by numerous leading 
academics from across the political and ideological spectrum, 
including Dean Kathleen Sullivan of the Stanford Law School, 
and Professor Lillian Bevier of the University of Virginia Law 
School. His understanding of the First Amendment has been 
adopted by the courts in sustaining State campaign finance 
laws.''
    It also speaks well of Professor Smith that constitutional 
scholars and election law experts that know him personally and 
are familiar with his work, including some who have served on 
the board of Common Cause, are confident that he will 
faithfully enforce the law as enacted by Congress and upheld by 
the courts.
    Professor Smith, let me read to you just a few examples of 
the confidence these experts have in your integrity, and 
commitment to the rule of law.
    Professor Daniel Lowenstein of the UCLA Law School served 
six years on Common Cause's National Governing Board. This is 
what he had to say: ``Anyone who compares his writings on 
campaign finance regulation with mine will find that our views 
diverge sharply. Despite these differences, I believe Smith is 
highly qualified to serve on the FEC. Smith possesses integrity 
and vigorous intelligence that should make him an excellent 
commissioner. He will understand that his job is to enforce the 
law even when he does not agree with it. In my opinion, 
although my views on the subject are not the same as theirs, 
the Senate leadership deserves considerable credit for having 
picked a distinguished individual rather than a hack. Although 
many people, including myself, can find much to disagree with 
in Bradley Smith's views, I doubt if anyone can credibly deny 
that he is an individual of high intelligence and energy and 
unquestioned integrity. When such an indvidual is nominated for 
the FEC, he or she should be enthusiastically and quickly 
confirmed by the Senate.''
    Professor Daniel Kobil of the Capital Law School, as I 
mentioned earlier, a former governing board member of Common 
Cause, Ohio, said, ``Knowing Brad personally, I have no doubt 
that his critics are wrong in suggesting that as an FEC 
Commissioner Brad would refuse to enforce Federal campaign 
regulations simply because he disagrees with them. I have 
observed Brad's election law class on several occasions and he 
always took the task of educating his students about the 
meaning and scope of election laws very seriously. I have never 
heard him denigrating or advocating skirting State or Federal 
laws, even though he may have personally disagreed with some of 
those laws. Indeed, several times in class he admonished 
students who seemed to be suggesting ignoring what they 
considered overly harsh election laws. Brad is an ethical 
attorney who cares deeply about the rule of law. I am confident 
that he will fairly administer the laws he is charged with 
enforcing as commissioner.''
    Professor Randy Barnett, of the Boston University Law 
School, ``I can tell you and your colleagues that Professor 
Smith is a person of the highest character and integrity. If 
confirmed, Brad will faithfully execute the election laws which 
the Commission is charged to enforce, including those with 
which he disagrees. Brad's critics need not fear that he will 
ignore current law but those who violate it may have reason to 
be apprehensive.''
    I think I will stop there and turn it over to my friend and 
colleague from Connecticut, the ranking member, Senator Dodd.
    Senator Dodd. Well, thank you very much, Mr. Chairman, and 
let me begin by welcoming both of our nominees and their 
families who are here as well. It is a great distinction to be 
nominated to serve in any capacity, but particularly one which 
is so important to the proper management of our Federal 
elections.
    So, I thank you, Mr. Chairman, for holdng this hearing this 
morning. I appreciate your willingness to cooperate in terms of 
the timing of all of this so that it would allow for a proper 
consideration of these two nominees, as well as, I hope, the 
printing in the record of those who have different views on 
these nominations so that our colleagues, prior to a final vote 
by the Senate, will have an opportunity to review the 
materials. I know there were those who wanted to testify here 
this morning, but as you have accurately pointed out it has 
been the longstanding tradition of this Committee to hear from 
nominees, rather than have public witnesses despite their 
desire to appear. But certainly their comments, I think, should 
be included in the record. I know you agree with that and, so, 
I appreciate your willingness to allow them to be a part of the 
record.
    At any rate, the terms these two nominees before us have 
been waiting to be filled for a year, and I feel very strongly 
that the FEC needs to be a functioning organization and body 
and to delay it any further is to do a great disservice to the 
country. It is important to the efficient and effective working 
of the Commission that we move these nominations to the floor, 
in my view, in an expeditious manner.
    But let me be very, very clear at the outset of these brief 
comments. Mr. Smith, I have some very serious reservations 
about your nomination and as an ardent supporter of campaign 
finance reform I have consistently stated my belief that there 
is too much emphasis on money in campaigns today. I believe 
that very deeply and very strongly. I have stated that for 
many, many years, going back to my elections in the House of 
Representatives.
    I have supported the elimination of soft money 
contributions and I firmly believe that large political 
contributions at the very least appear to corrupt the American 
political process and to erode confidence in our form of 
democracy and, so, can be justifiably limited in my view
    My personal views on the need for a strong enforcement body 
at the FEC, I think, are very different from yours. But the 
question today is not just what I or Mr. Smith or the Chairman 
or anyone else on this Committee believes is wrong with 
political campaigns--we have debated that, we will continue to 
do so--the important question before us today is whether we 
will allow the process of choosing the political parties' 
representatives on the Federal Election Commission to go 
forward. That is the issue.
    And by way of background, let me remind my colleagues that 
in keeping with the intent of the Act it has been the practice 
of the Committee to move nominations, as I said a moment ago, 
for the Federal Election Commission in strict pairs: A 
Democratic nominee paired with a Republican nominee. Great 
deference has traditionally been given by the President to the 
preferences of the Republican and Democratic leadership in the 
selection of such nominees. Not surprisingly such nominees 
usually, usually reflect the relative positions of the parties 
on such issues as the constitutionality of spending limits and 
the need for reform. And nowhere is the distinction between the 
parties in my view more evident than on the issue of campaign 
finance reform.
    Having said that, barring any unforeseen revelations in 
this morning's testimony, it would be my intent to follow the 
usual process and support the Chairman's action in moving this 
pair of nominees to the Senate floor. However, I will reserve 
my rights to review the full hearing record and the floor 
debate before casting a final vote to confirm either of these 
two nominees.
    Again, I commend the Chairman for ensuring a complete 
hearing record by allowing interested parties, many of whom are 
gathered in this room today, and including some of our 
colleagues, the opportunity to augment the hearing record with 
written testimony. To ensure the full Senate has the benefit of 
today's testimony, I would encourage the Committee staff to 
have the hearing record printed prir to the Senate's 
deliberation on these nominations.
    I welcome Mr. McDonald and Mr. Smith here, this morning, 
and I look forward to hearing your testimony. I am sure it 
comes, it shouldn't anyway, as no surprise to you, Mr. Smith, 
that your nomination is viewed with skepticism, to put it 
mildly, by some members of this Committee and some members of 
the United States Senate and many people who are not a part of 
the political body of the Senate. Personally, I do not share 
your views nor your concerns that campaign finance reform will 
lead to undemocratic consequences. Regardless of that, I can 
assure you that I intend to see that you and Mr. McDonald 
receive a complete and fair hearing.
    The purpose of the hearing today is to examine the nominees 
and to determine their fitness for office, as a member of the 
regulatory body which oversees compliance with the Federal 
election laws. It is our ultimate responsibility to make a 
recommendation to the Senate as to whether or not these 
nominees should be confirmed to the positions to which they 
have been nominated.
    Let me be very clear, Mr. Chairman, that I have no 
preconceived litmus test for making that determination. A 
nominee's views on the constitutionality of the Federal 
Election Campaign Act are less a reflection of his or her 
fitness for office than in many ways they are a reflection of 
the values held by the party that chooses such a nominee.
    Regardless of a nominee's personal views, our 
responsibility is to determine whether or not such an 
individual can, nonetheless, fulfill his or her constitutional 
responsibility to enforce our election laws, not as the nominee 
would have wished that these laws be written but as the laws 
have been enacted by the Congress of the United States. The 
nominees before us today are both clearly qualified experts on 
election law. Commissioner McDonald is currently the Vice 
Chairman of the Federal Elections Commission. He has served on 
the FEC for nearly 18 years, three times in the position of 
Chairman and tree times as Vice Chairman. Prior to joining the 
Commission he served in the election trenches, as Secretary of 
the Tulsa County Election Board in Tulsa, Oklahoma.
    Mr. Smith's expertise is similarly undisputed. He is a 
recognized academician on the subject of campaign finance and 
election law. For the past seven years, he has taught election 
law courses at Capital University, Law School in Columbus, 
Ohio. And has written and testified extensively on campaign 
finance reform, including an article in the University of 
Connecticut Law Journal, I might point out.
    That is a good recommendation.
    [Laughter.]
    Senator Dodd. And one at Yale Law Review, as well, less of 
a recommendation than Connecticut, I might add, but certainly 
an important one, as well.
    [Laughter.]
    Senator Dodd. And certainly you are no stranger to this 
Committee having testified before us in 1997 on the topic of 
soft money and in 1996 in the McCain-Feingold reform 
legislation. And while I do not share your views, Mr. Smith, as 
to the wisdom of our current election laws or the need for 
campaign finance reform, I respect the Republican majority's 
prerogative to choose a nominee who reflects their beliefs. My 
criteria for reviewing your qualifications this morning are to 
determine whether, regardless of your views as to the wisdom or 
constitutionality of those laws, you can and will uphold and 
enforce, enforce the election laws of this land.
    Consequently, Mr. Smith, I will be listening very closely 
to your statement, your answers to the questions this morning. 
I look forward to hearing the testimony from both of our 
witnesses.
    And I thank you, Mr. Chairman.
    The Chairman. Thank you, Senator Dodd.
    We will proceed.
    Commissioner McDonald, you make your opening statement, 
followed by Professor Smith.

   TESTIMONY OF DANNY LEE McDONALD, OF SAD SPRINGS, OKLAHOMA

    Mr. McDonald. Mr. Chairman, thank you, and Senator Dodd, as 
well.
    First of all, let me say that I want to thank the staff of 
the Rules Committee. They have been very gracious in dealing 
with me and have kept me informed of what was going on and what 
might change and what might not. So, I appreciate that very 
much.
    I want to thank Senator Nickles. I am sorry Don had to 
leave. We both suffered a real blow this last week as I 
conveyed to the Chairman moments before the meeting that 
Oklahoma State Cowboys came up a little short for the 
conference title but there is always the next round; we are 
hopeful.
    Now, I want to recognize my wife, Gail, the first lady of 
our house. She is here for the fourth time. I want to recognize 
my staff, as well, that is here and they have been very good to 
prepare me for today's session, as well as the past some 18 
years.
    I want to also, Mr. Chairman, express my appreciation for 
the Committee moving quickly on this nomination. As you have 
indicated, it is time to move along. We would like to have a 
settled Commission and we appreciate that very much. I want to 
thank the President for the confidence in placing my name in 
nomination again and if I am confirmed I look forward to 
continuing my service at the Federal Election Commission.
    I want to say, Mr. Chairman, Senator Dodd, that in the 
years that I have been at the Federal Election Commission maybe 
one of the things that I appreciate about it the most is the 
staff. We have had good luck because we have had people that 
are dedicated to the process. And as the Chairman alluded to in 
his opening remarks, things get a little tense, might be the 
most appropriate way to put it, in relationship to the Federal 
Election Campaign Act. I think that is just part of the 
process. But throughout one of the things that has remained 
constant is the staff and the service to the public.
    PricewaterhouseCoopers-Lybrand conducted an audit of our 
agency a couple of years ago at the direction of this 
Congressand said among all else that the staff was fair, it was 
unbiased and it was committed to an outstanding job 
performance. So, I think it is really important to recognize 
the staff because I think without that kind of dedication to 
this process it would make it much more difficult.
    Mr. Chairman, I know that you and members of this Committee 
have a number of other things on your agenda and I just want to 
say to you that I will be happy to answer any questions you 
have and, once again, I appreciate you scheduling this meeting 
expeditiously.
    Thank you.
    [The prepared statement of Mr. McDonald follows:]

           PREPARED STATEMENT OF DANNY LEE McDONALD

    Mr. Chairman, Senator Dodd and members of the Committee. I 
express my gratitude to you and all the members of the 
Committee for the prompt scheduling of this nomination hearing. 
It is indeed an honor and a privilege to appear before you 
today as a nominee to the Federal Election Commission.
    May I also, Mr. Chairman, take this opportunity to thank 
the President for the great confidence that this nomination 
reflects. Service on the Commission is a source of immense 
pride to me personally.
    If confirmed by the Senate, I look forward to continuing my 
public service at the Federal Election Commission.
    Mr. Chairman, over the years I have had the good fortune of 
working with a number of dedicated and hard working people, and 
most of all fair individuals at the FEC. This was further 
bolstered by an FEC Technology and Performance Audit, mandated 
by Congress and conducted by PriceWaterhouseCoopers (PwC). That 
report found the FEC's disclosure and compliance activities are 
executed without partisan bias, which is vital.
    I acknowledge, Mr. Chairman, that you and the members of 
this Committee are heavily burdened with an overload of 
critically important issues currently before the Senate, so out 
of deference to your very busy schedules, I will close and will 
be happy to answer any and all questions you or any member of 
this Committee may have.
    Thank you for the opportunity to appear before you today 
and for all your consideration.
    The Chairman. Thank you, Commissioner.
    Professor Smith?

        TESTIMONY OF BRADLEY A. SMITH, OF COLUMBUS, OHIO

    Mr. Smith. Thank you, Mr. Chairman.
    I would like to begin by thanking Senators Voinovich and 
DeWine for their support and for their introductions and to say 
it is a pleasure to be back before this Committee, albeit in a 
different capacity than in the past.
    If I may indulge for a minute, in addition to my family, I 
was pleased to see this morning, both some of my former 
students and current students in the audience today and it is a 
great pleasure for me to see that. Ken Nahigian, who is 
clerking Federal court here, and who has a brother who has 
played a major role in the campaign of Senator McCain; and our 
president of the student bar association at Capital University, 
Dave Thomas; and one of my former election law students, Corey 
Columbo, are here.
    Generally speaking, well, let me say this, I am deeply 
honored to be here and to be nominated for the seat on the 
Federal Election Commission and I am honored to get a chance to 
explain my beliefs. And, Senator Dodd, I appreciate the 
fairness with which you have approached this hearing, as 
opposed to those who have made prejudgments based on press 
releases written by interest groups which are opposed to this 
nomination.
    It is, quite frankly, hard for me, as the son of a 
Midwestern public school teacher with no prior political 
conections, to imagine having been called on to fill a position 
of public trust such as this. And I take the responsibility for 
which I am being considered most seriously.
    One of the founding principles of our nation was a 
commitment to the rule of law and that commitment requires that 
public servants faithfully carry out their assigned duties 
under the laws passed by Congress with due regards to the 
rights guaranteed to Americans through the Constitution. It 
also requires humility on the part of those who serve in 
Government.
    This humility requires public servants to recognize both 
the limits of government as a cure for every flaw, whether 
actual or apparent, in our society and demands that public 
servants recognize and respect the limits placed on their 
authority and power within the framework of our Government.
    This humility is especially important when we consider the 
role of the Federal Election Commission and those who would 
serve on it, for the FEC's role in monitoring and enforcing 
election laws goes to the core of our democratic institutions.
    Equally important, the FEC, necessarily deals with First 
Amendment issues of the most sensitive nature, as the United 
States Supreme Court recognized in Buckley v. Valeo and has 
consistently recognized in later cases brought under the 
Federal Election Campaign Act.
    While I cannot hope to replace the experience and wisdom 
that Commissioner Lee Ann Elliott has given the Commission, I 
believe that my academic and generally nonpartisan background, 
my studies of constitutional issues surrounding campaign 
finance regulation, and my knowledge of the empirical effects 
of past regulatory efforts will make me an effective addition 
to the Commission.
    Unlike Mr. McDonald, I am a professor, so it is virtually 
impossible for me to keep my remarks extremely brief. And given 
the controversy that has surrounded this nomination, it is 
perhaps appropriate for me to say a few words on that 
controversy.
    In the 10 months since my name first surfaced as a 
candidate, ertain outside groups and editorial writers opposed 
to this nomination have relied on invective and ridicule to try 
to discredit me. Among other things, some have likened 
nominating me to nominating Larry Flynt, a pornographer, to 
high office. Nominating me has been likened to nominating David 
Duke, a one-time leader in the Ku Klux Klan, to high office. 
Nominating me has been likened to nominating Slobodan 
Milosevic. Nominating me has been likened to Theodore 
Kaczynski, the Unabomber, a murderer, to high office.
    Just this week I saw a new one. I was compared to 
nominating Jerry Springer, which is probably not a good 
comparison since Mr. Springer is a Democrat.
    Other critics have attempted ridicule, labeling me a ``flat 
earth society poohbah,'' and more, and I say all this not by 
way of complaint, because I am sure that the members of this 
committee have probably been called similar or worse things in 
the course of your public lives.
    The Chairman. I have definitely been called worse.
    [Laughter.]
    Mr. Smith. Such over-the-top name calling I think we 
recognize, while it is not usually what we would think of as 
good government, it is an unfortunate reality of politics in 
America today.
    I mention this only to point out the extent to which some 
people are willing to go to try to defeat this nomination. In 
my case, this has also included an effort to twist and distort 
my views through the intentional misrepresentation of my 
positions and through selective, out-of-context quotation from 
the thousands of pages of written work that I have produced 
over the past 5-plus years. But, again--you can correct me if 
I'm wrong--I suspect that those of you on the committee are not 
strangers to having your views misrepresented and 
oversimplified.
    It has now been a quarter of a century, nearly a quarter of 
a century since the Supreme Court decided the seminal case on 
campaign finance regulation, Buckley v. Valeo. The issues in 
Buckley divided observers, to a substantial extent, into two 
camps. The first amp insisted that the Constitution allowed 
Congress and the States expansive leeway to regulate all 
aspects of campaign funding, both expenditures--including what 
we now call ``issues ads''--and contributions. And into this 
camp fell a broad spectrum of persons, scholars, activists, 
politicians, ranging from then Republican Senate leader Hugh 
Scott, to Common Cause and the Center for Public Financing of 
Elections.
    The second camp, in turn, insisted that the First Amendment 
constituted a high barrier to the regulation of both 
expenditures and contributions. And this camp, too, was broad, 
including then Republican Senator and now U.S. Court of Appeals 
Judge James Buckley, the American Civil Liberties Union, and, 
once again, a variety of scholars, activists, and politicians.
    In the end, neither camp gained a complete victory in 
Buckley. The Court recognized that limits on campaign 
contributions and expenditures do infringe on First Amendment 
rights but, nevertheless, held that the Government interest in 
preventing the corruption or appearance of corruption noted by 
Senator Dodd was sufficient to justify some limitation of 
contributions, so long as the limits on contributions were not 
so low as to prevent ``candidates and political committees from 
amassing the resources necessary for effective advocacy.''
    At the same time, the Court rejected efforts to limit a 
candidate's contributions to his or her own campaign, and also 
rejected as unconstitutional under the First Amendment all 
mandatory efforts to regulate spending, whether those efforts 
consisted of direct candidate spending, independent 
expenditures, or what we now refer to as ``issue advocacy.''
    Over the years, the Court's distinction between 
contribution limits and spending limits has been a source of 
great controversy. Indeed, Chief Justice Burger rejected the 
distinction in Buckley itself, writing that ``contributions and 
expenditures are two sides of the same First Amendment coin,'' 
and going on to argue that contribution limits are, in fact 
unconstitutional.
    Justice Blackmun agreed, arguing that the Court was not 
able to make ``a principled constitutional distinction between 
contribution limits, on the one hand, and expenditure limits, 
on the other.'' And Justice Blackmun also felt that it was 
unconstitutional to regulate contributions.
    In later years, other Supreme Court Justices have also 
questioned the distinction between contributions and 
expenditures, including Justice Marshall, who, though part of 
the original Buckley majority, came to believe that 
expenditures, like contributions, could be regulated, 
consistent with the Constitution; and more recently, Justices 
Scalia and Thomas and Kennedy, who seem to have concluded that 
a proper understanding of the First Amendment precludes 
regulation of either contributions or expenditures.
    Not surprisingly, commentators have also reached different 
conclusions on what should be the state of the law. But, 
nevertheless, Buckley's distinction has stood, and that is what 
the law is. And, throughout, a majority of the Supreme Court 
and lower courts have held that issue advocacy in particular 
remains constitutionally protected speech.
    I believe that it is safe to say that few observers are 
completely satisfied with the distinction that Buckley makes 
between contributions and expenditures. Although I believe that 
there are some logical arguments for the distinction and that 
contribution limits are better justified than expenditure 
limits, in the end I find myself in the company of Judge 
Buckley, Chief Justice Burger, Justices Kennedy, Scalia, 
Thomas, and Blackmun, and the numerous other commentators who 
believe that the First Amendment should have been interpreted 
to prohibit limits on contributions. That my view on this part 
of the Buckley decision is not, in fact, the law is well known 
and easily understood. What seems not to be so easily 
understood by some outside observers is that their vision of 
what Buckley should have said as to expenditure limits and 
issue advocacy is not the law, eiter.
    Nor is it apparent why those of us who agree with Buckley's 
holding on expenditure limits, but disagree with it on 
contribution limits, should be branded as ``extremists'' who 
are ``unfit'' for office, while those who agree with Buckley's 
holdings on contribution limits, but disagree with its holdings 
on expenditure limits and issue advocacy, and who specifically 
and loudly call for Buckley to be overruled, should be deemed 
``mainstream reformers.''
    But regardless of whether any one Commissioner would fall 
into one camp or the other, it is not the Federal Election 
Commission, let alone any one Commissioner, which will make the 
law in that area. These issues are decided by you, the Members 
of the Senate, along with the House of Representatives, and 
with the signature of the President on legislation, which is 
then interpreted by the courts. And the job of the Commission 
and of the Commissioners is to enforce the laws of Congress as 
interpreted by the courts.
    Earlier I mentioned some of the extreme analogies that have 
been made about my nomination, and the truth is that for the 
most part I find such analogies really silly and more amusing 
than a particularly troubling source of abuse. But there is one 
charge that I do take as a personal insult to my integrity and 
to my devotion to the rule of law, and that is the charge that 
as a Commissioner I would not uphold the law, I would not 
enforce the law, where I might disagree with it.
    The irony, of course, is that those who most vehemently 
make this charge also disagree with substantial portions of the 
law as interpreted by the Supreme Court and lower Federal 
courts. But, in any case, these critics have no basis--I assure 
you, none whatsoever--for making this allegation about me, for 
every day in our country thousands of public servants--from the 
President on down, Cabinet officials, prosecutors, police 
officers, clerical staff--are asked to and do enforce laws with 
which they disagree. And I claim no particular heroism in 
making clear that I have noproblem in enforcing the law as it 
has been written by Congress and interpreted by the courts.
    Finally, should you confirm my nomination to the seat--I 
guess today I just hope you'll send it forward for that 
confirmation--I would like to make a quick pledge to you.
    First, I will defer to Congress to make law and not seek to 
usurp that function to an unelected bureaucracy.
    Second, when the Commission must choose under the law 
whether to act or not to act, or how to shape the rules 
necessary for the law's enforcement, faithfulness to 
congressional intent and to the Constitution, as interpreted by 
the courts, will always be central to my decisionmaking.
    Third, I will act to enforce the law as it is, even when I 
disagree with the law. But, further, noting once again the 
manner in which the Buckley decision has largely divided 
commentators into two camps, I will also act to enforce the law 
as it is, even when self-styled reform groups or other special 
interests would urge the Commission to enforce the law as they 
would like it to be, but as it is not.
    Finally, I pledge that I will strive at all times to 
maintain the humility that I believe is necessary for any 
person entrusted with the public welfare to successfully carry 
out his or her duties.
    Thank you, and I am open for questions.
    [The prepared statement of Mr. Smith follows:]

            Prepared Statement of Bradley A. Smith

    Mr. Chairman, and members of the Committee, it is a 
pleasure to be back before this committee, albeit in a much 
different capacity than in the past. I am deeply honored to 
have been nominated to a seat on the Federal Election 
Commission, and honored to appear before you today in 
connection with that nomination.
    It is, quite frankly, hard for me, the son of a mid-western 
public school teacher, with no prior political connections, to 
imagine be called on to fill such a position of public trust. I 
take the responsibility for which I am being considered most 
seriously. One of the founding principles of our nation was a 
commitment to the Rule of Law, and that commitment requires 
public servants to faithfully carry out their assigned duties 
under the laws passed by Congress, with due regard for the 
rights guaranteed to Americans through the Constitution. It 
also requires humility on the part of those who serve in 
government. This humility requires public servants to recognize 
both the limits of government as a cure for every flaw, whether 
actual or apparent, in our society, and demands that public 
servants recognize and respect the limits placed on their 
authority and power within the framework of our government. 
This humility is especially important when we consider the role 
of the Federal Election Commission and those who would serve on 
it. For the FEC's role in monitoring and enforcing election 
laws goes to the core of our democratic institutions. Equally 
important, the FEC necessarily deals with First Amendment 
issues of the most sensitive nature, as the United States 
Supreme Court has consistently recognized since the first cases 
brought under the Federal Election Campaign Act.
    This is both an exciting and a challenging time to 
contemplate an appointment to the Commission. I have met only a 
handful of people on the Commission staff, but these people 
have uniformly impressed me with their talent, knowledge, and 
dedication. I note that a recent management review of the 
Commission, conducted by Price-Waterhouse-Coopers, went out of 
its way to praise the Commission's staff for its impartial, 
ethical, and independent conduct, and for maintaining a high 
level of confidentiality in enforcement investigations. 
Although I lack the detailed knowledge that would come from 
serving on the Commission, in recent years even the casual 
observer must note the improvements being made in the 
Commission s operations. Anybody with even a passing 
familiarity with the Commission cannot help but be impressed by 
the improvements made by the Commission in carrying out its 
disclosure function. I am pleased to see little changes at the 
Commission, such as adding Spanish to the FEC website. As a 
former resident in Latin America, and the first ever Honorary 
Member of the Hispanic Republican Coalition of Central Ohio, 
the low voter turnout in most of our nation s many Hispanic 
communities is a source of concern to me, and I think it 
important that these fast growing communities become fully 
integrated into the functioning of American democracy. Such 
small steps that move us in that direction are to be applauded. 
And I am pleased to see big steps at the FEC, such as the 
Commission moving, with what appears to me to be a appropriate 
mix of speed and caution, to consider what, if any, rules it 
should adopt with regard to the internet. I am pleased to see 
the Commission reducing the number of non-substantive 
dismissals. Mine is just an outsider's view, but there seems to 
be a new, positive direction at the FEC, and I congratulate the 
Commission and staff for it. And though I cannot hope to 
replace the experience and wisdom that Commissioner Elliott has 
given the Commission, I believe that my academic and non-
partisan background; my studies of Constitutional issues 
surrounding campaign finance regulation; my experience in 
running a very small state PAC, of the type on which the burden 
of regulation weighs heaviest; and my knowledge of the 
empirical effects of past regulatory efforts, will make me an 
effective addition to the Commission.
    Given the controversy that has surrounded this nomination 
since my name first surfaced publicly as a candidate for this 
position nearly ten months ago, it is perhaps appropriate for 
me to say, now, a few words on that controversy. In those ten 
months, certain outside groups and editorial writers opposed to 
this nomination have relied on invective and ridicule to try 
and discredit me. Among other things, some have likened 
nominating me to nominating Larry Flynt, a pornographer, to 
high office. Nominating me has been likened to nominating David 
Duke, a onetime leader in the Klu Klux Klan, to high office. 
Nominating me has been likened to nominating Slobodan Milosovic 
to high office. Indeed, nominating me has been likened to 
nominating Theodore Kacynski, aka the Unibomber, a murderer, to 
high office. Other critics have attempted ridicule, labeling me 
a ``flat earth society poohbah'', a ``toady'', and more. I say 
this not by way of complaint, for I am sure that many, if not 
all, of you have been called similar or worse things in the 
course of your public lives. And although such over-the-top 
name-calling is not generally what we would associate with the 
cause of ``good government'', we recognize that in political 
life, this is sometimes the unfortunate reality. Rather, I 
mention this only to point out the extent to which some persons 
are willing to go to try and defeat this nomination. In my 
case, this has also included an effort to twist and distort my 
views, through intentional misrepresentation of my positions, 
and through selective, out-of-context quotation from the 
thousands of pages of written work I have produced over the 
past five plus years. But again, I suspect that some of you are 
no strangers to such misrepresentation and oversimplification 
of your views.
    It has now been nearly a quarter of a century since the 
Supreme Court decided the seminal case on campaign finance 
regulation, Buckley v. Valeo. The issues in Buckley divided 
observers, to a substantial extent, into two camps. The first 
camp insisted that the Constitution allowed Congress and the 
states expansive leeway to regulate all aspects of campaign 
funding, both expenditures--including what we now call ``issue 
ads''--and contributions. Into this camp fell a broad spectrum 
of persons, ranging from then Republican Senate leader Hugh 
Scott, to prominent Democrats such as Archibald Cox, to Common 
Cause, to the Center for Public Financing of Elections, and 
finally to numerous scholars, activists, and politicians. The 
second camp, in turn, insisted that the First Amendment 
constituted a high barrier to the regulation of both 
expenditures and contributions. This camp, too, was broad, 
including then Republican Senator and now U.S. Court of Appeals 
Judge James Buckley, the American Civil Liberties Union, the 
Conservative Party, and, once again, numerous scholars, 
activists, and politicians.
    In the end, neither of these two camps gained a complete 
victory in Buckley. In that decision, the Court recognized that 
limits on campaign contributions and expenditures infringe upon 
First Amendment rights, and therefore can only be justified by 
compelling government interests. Despite the infringement of 
First Amendment rights, the Court ultimately held that the 
government interest in preventing ``corruption'' or the 
``appearance of corruption'' was sufficient to justify some 
limitation of contributions, so long as the limits on 
contributions were not set so low as to ``[prevent] candidates 
and political committees from amassing the resources necessary 
for effective advocacy''. At the same time, the court rejected 
efforts to limit a candidate's contributions to his or her own 
campaign, and also rejected, as unconstitutional under the 
First Amendment, all mandatory efforts to regulate spending, 
whether those efforts consisted of direct candidate spending, 
``independent expenditures,'' or what we now refer to as 
``issue advocacy''.
    Over the years, the Court's distinction between 
contribution limits and spending limits has been a source of 
great controversy. Indeed, Chief Justice Burger rejected the 
distinction in Buckley itself, writing that ``contributions and 
expenditures are two sides of the same First Amendment coin,'' 
and arguing that contribution limits are unconstitutional. So 
did Justice Blackmun, writing, ``I am not persuaded that the 
Court makes, or indeed is able to make, a principled 
constitutional distinction between contribution limitations, on 
the one hand, and expenditure limitations, on the other...'' In 
later years, other Supreme Court Justices have also questioned 
the distinction between contributions and expenditures. Justice 
Marshall, for example, though part of the original Buckley 
majority, came to see the distinction as untenable, and came to 
believe that expenditures, like contributions, could be 
regulated consistent with the Constitution. Justices Scalia and 
Thomas, on the other hand, concluded that a proper 
understanding of the First Amendment precluded regulation of 
either contributions or expenditures. Not surprisingly, 
commentators have also reached differing conclusions on what 
should be the state of the law. Nevertheless, Buckley's 
distinction has stood. And, throughout, a majority of the 
Supreme Court, and lower courts, have held that ``issue 
advocacy'' remains constitutionally protected speech.
    I believe that it is safe to say that few observers are 
completely satisfied with the distinction that Buckley makes 
between contributions and expenditures. Although I believe that 
there are some logical arguments for the distinction, and that 
contribution limits are better justified than expenditure 
limits, in the end I find myself in the company of Judge 
Buckley, Chief Justice Burger, Justices Blackmun, Scalia, and 
Thomas, and the numerous commentators who believe that the 
First Amendment should have been, and should be, interpreted to 
prohibit limits on contributions. That my view on this part of 
the Buckley decision is not the law is well known and easily 
understood. What seems not to be so easily understood, at least 
by some, is that their vision of what Buckley should have said, 
as to expenditure limits and ``issue advocacy'', is not the 
law, either.
    Nor is it apparent why those of us who agree with Buckley s 
holding on expenditure limits, but disagree with it on 
contribution limits, should be branded as ``extremists'' who 
are ``unfit'' for office; while those who agree with Buckley's 
holdings on contribution limits, but disagree with it s 
holdings on expenditure limits and ``issue advocacy'', and who 
specifically and loudly call for Buckley to be overruled, 
should be deemed ``mainstream reformers''. And I believe that 
it lowers the quality of debate, lessens our understanding of 
the serious issues involved, and increases the cynicism of the 
public, when special interests seek to brand all those with 
whom they disagree as ``extremists''.
    Regardless of whether any particular Commissioner falls 
into one camp or the other, it is not the Federal Election 
Commission, let alone any one Commissioner, which makes the 
law. These issues are decided by you, the members of the 
Senate, along with the House of Representatives, and with the 
signature of the President on legislation, which is interpreted 
by courts. The job of the Commission, and of the Commissioners, 
is to enforce the laws of Congress.
    This points up an important difference between me and many 
of the outside groups that have opposed this nomination, and 
this difference is our respective views of the proper role of 
the FEC. In the past, the FEC has been criticized for pursuing 
enforcement actions that push the limits of the law and, 
indeed, infringe upon the First Amendment rights of Americans. 
These efforts by the FEC to expand the scope of the law 
resulted in a number of defeats for the Commission in the 
courts of the United States, culminating three years ago with 
the decision of the Fourth Circuit Court of Appeals in FEC v. 
Christian Action Network. In Christian Action Network, the 
Court admonished the Commission for arguing for an expansive 
interpretation of the law that, said the Court, ``simply cannot 
be advanced in good faith..., much less with `substantial 
justification.''' Finding the Commission's legal position 
``disingenuous,'' the Court then took the extraordinary step of 
ordering the Commission to pay the opposing party's attorneys' 
fees. Not knowing the inside history of this or the various 
other enforcement actions which have caused the Commission such 
embarrassment, I do not intend for my comments to be construed 
as criticism of past or present Commissioners or staff. But it 
was clear at the time of Christian Action Network that at some 
point the Commission has made serious errors in its enforcement 
approach.
    There are those, however, who applaud such enforcement 
actions, and urge the appointment of a commissioner who will 
continue to vote for such ``robust'' enforcement. But what they 
call ``robust'', the courts have all too often called 
``unconstitutional.'' A true commitment to enforcing the law, 
as it now stands, does not mean pushing the envelope on the 
Constitutional limits of enforcement every time one thinks one 
might get away with it. Rather, it must include showing 
restraint where the courts have indicated that such restraint 
is required. Moreover, I believe that if we are to continue the 
strides made by the FEC in recent years, the Commission must 
continue to respect the statutory and constitutional limits on 
its power and focus its resources accordingly. Truly effective 
enforcement requires a careful allocation of its resources. The 
cost of appellate litigation is substantial, and undoubtedly 
resources devoted to such adventuresome litigation as Christian 
Action Network might otherwise be devoted to resolving a much 
greater number of cases where the law is clear. So what some of 
my critics have cheered as ``robust'' enforcement not only has 
infringed on the Constitutional liberties of our citizens, but 
it has probably damaged the Commission's overall enforcement 
efforts. The FEC ought to focus on that vast majority of cases 
where the law is clear and enforcement can be made swift and 
sure. Devoting resources to these ``meat and potatoes'' cases, 
removing the backlog of cases, and improving response time 
strikes me as a more appropriate use of enforcement resources, 
and one more likely to restore and build confidence in the 
integrity of government, than is pursuing actions that infringe 
on the constitutional rights of the people and which are 
likely, eventually, to lose in the courts. Such losses come at 
great cost to the Commission, to the taxpayers, and to the 
private defendants attempting to exercise their rights of free 
speech and political participation.
    At the time such decisions were made, members of the 
Commission may have had justifiable reasons for pursuing cases 
such as Christian Action Network. I am quite sure that had I 
been on the Commission I would have voted against that 
enforcement action, since I viewed the Commission's position as 
unconstitutional, as the Court of Appeals ultimately did. In 
any case, after Christian Action Network, future efforts at 
such ``robust'' enforcement by the Commission would be nothing 
less than irresponsible.
    The difference between my view of the proper role of the 
FEC, and that held by many of my critics, is also apparent when 
considering the Commission s rule making function. For example, 
in each of the last several sessions of Congress, bills have 
been introduced and voted on in both the House and Senate to 
ban ``soft'' money. Such legislation, however, has not passed, 
as you well know. In response, some have sought to have the 
Federal Election Commission ban soft money through the rule-
making process.
    It strikes me, however, that a proper respect for the Rules 
of Law requires the Commission to respect the role of Congress 
first. It is, of course, necessary at times for federal 
agencies, through the rule-making process, to fill in gaps or 
to provide guidelines to assure compliance with the law. But 
when Congress has specifically considered, and failed to pass 
legislation, it is not appropriate for unelected federal 
bureaucrats to legislate in Congress s place. Proper respect 
for this body, for the House of Representatives, and for the 
Constitution, requires Commissioners of the FEC to be more 
humble. Where Congress has specifically defeated legislation, I 
will not legislate in your place, any more than you would 
expect me, or any other Commissioner, to ignore legislation 
which Congress has actually passed.
    Let me add that I share many of the concerns of my critics 
about a growing cynicism, as opposed to healthy skepticism, of 
government. But I do not believe that this cynicism is best 
combated by broadly painting all members of this Chamber, and 
the House of Representatives, as ``corrupt'', when such charges 
are demonstrably untrue, nor by hurling over-the-top invective 
at those with whom we have disagreements on issues. Earlier I 
mentioned some of the extreme analogies that have been made 
about my nomination, and the truth is that, for the most part, 
I find such analogies silly, and more amusing than abusing. 
However, there is one charge that I take as a personal insult 
to my integrity and to my devotion to the Rules of Law, and 
that is the charge that as a Commissioner, I would not enforce 
the law. These critics have no basis - none whatsoever - for 
making this allegation. And while the Rule of Law is a value I 
hold deeply, I pretend no particular heroism in this task. For 
every day in our country, thousands of public servants are 
called upon to, and do, enforce laws with which they disagree, 
from the President on down through cabinet officials, lower 
level officials, civil servants, prosecutors, law enforcement 
officers, and even clerical staff.
     Finally, should you confirm my nomination to this seat, 
which I hope that you will, here is my pledge to you. First, I 
will defer to Congress to make law, and not seek to usurp that 
function to the unelected bureaucracy. Second, when the 
Commission must choose, under the law, whether to act or not to 
act, or how to shape rules necessary for the law's enforcement, 
faithfulness to congressional intent and the Constitution, as 
interpreted by the courts, will always be central to my 
decision making. Third, I will act to enforce the law as it is, 
even when I disagree with the law. Further, noting once again 
the manner in which the Buckley decision has largely divided 
commentators into two camps, I will act to enforce the law as 
it is, even when self-styled ``reform'' groups or other special 
interests would urge the Commission to enforce the law as they 
would like it to be, but not as it is. Finally, I pledge that I 
will strive at all times to maintain the humility that I 
believe is necessary for any person entrusted with the public 
welfare to successfully carry out his or her duties.
    Thank you.
    The Chairman. Thank you, Professor Smith.
    Commissioner McDonald, I have a letter, the entire text of 
which I am going to put in the record, [See Appendix 3.] but 
parts of which I am going to read to you and in a moment ask 
for your reaction. This letter makes some very serious 
allegations regarding your fitness to serve as Commissioner. I 
cannot help but take the letter seriously, and I am quite sure 
my colleagues will as well, especially my colleague from 
California, the senior Senator from California, because it was 
written by a constitutional law expert who has been honored as 
Lawyer of the Year by both the 20,000-member Los Angeles County 
Bar Association and the Constitutionl Rights Foundation. The 
author is a former member of the faculty of the University of 
Chicago Law School and is regularly asked to speak on election 
law and the First Amendment throughout the United States and in 
Europe. So let me just read some parts of the letter.
    This is from Emmanuel S. Klausner, whose background I 
already described, and he says, ``I am a lawyer in Los Angeles 
and my practice emphasizes First Amendment election law and 
civil rights litigation. I serve as general counsel for the 
Individual Rights Foundation. I was a former member of the 
faculty of the University of Chicago Law School and am a past 
recipient of the Lawyer of the Year Award from the 
Constitutional Rights Foundation and the Los Angeles Bar 
Association. I have written and spoken on First Amendment 
election law issues at law schools and conferences in both the 
U.S. and Europe.''
    ``As you well know, for many years''--this is a letter to 
me. ``As you well know, for many years the FEC has sought to 
expand the scope of its jurisdiction beyond the limitations the 
First Amendment places on the agency's authority to regulate 
political speech. Some have blamed an overzealous general 
counsel for the FEC's long history of contempt for the First 
Amendment. But it must be remembered that under the FECA the 
general counsel cannot pursue litigation that impermissibly 
chills free speech, unless Commissioners, such as Danny Lee 
McDonald, vote to adopt and enforce unconstitutional 
regulations. Commissioner McDonald's disregard for the rule of 
law and our constitutional system of government is illustrated 
by his role in the FEC's ongoing efforts to expand the 
definition of express advocacy.''
    Further, Mr. Klausner says, ``After the 1992 Presidential 
election, Commissioner McDonald voted to pursue an enforcement 
action against the Christian Action Network for issue ads it 
ran concerning Governor Bill Clinton's views on family values. 
McDonald supported the suit against CAN despite the fact that 
the general counsel conceded that Chistian Action Network's 
advertisement did not employ explicit words, express words, or 
language advocating the election or defeat of a particular 
candidate for Federal office.''
    ``McDonald voted for the case to proceed on the theory that 
the ad constituted express advocacy, not because of any express 
calls to action used in it but, rather, because of the 
superimposition of selected imagery, film footage, and music 
over the non-prescriptive background language. This was 
basically an effort to blur the objective standard for express 
advocacy into a vague, subjective, totality of circumstances 
test.''
    ``The United States District Court for the Western District 
of Virginia dismissed the FEC's complaint on the grounds that 
it did not state a well-founded claim. The Christian Action 
Network subsequently asked the court to order the FEC to pay 
the expenses it had incurred in defending the FEC's baseless 
lawsuit. The Fourth Circuit ruled in favor of the Christian 
Action Network, explaining that`in the face of an unequivocal 
Supreme Court and other authority discussed and arguments such 
as that made by the FEC in this case that no words of advocacy 
are necessary to expressly advocate the election of a candidate 
simply cannot be advanced in good faith as disingenuousness in 
the FEC's submissions test, much less with substantial 
justification'.''
    ``By rejecting the nomination of Danny Lee McDonald,'' Mr. 
Klausner says, ``Congress can signal that it will not tolerate 
FEC Commissioners who arrogantly refuse to honor their oath to 
uphold and defend the Constitution.''
    Pretty strong language, Commissioner McDonald. I think this 
letter raises serious issues this committee cannot ignore 
concerning your own fitness to serve on the Federal Election 
Commission.
    Specifically, I think this letter calls into question your 
commitment to the rule of law as enacted by Congress and upheld 
by the courts, your willingness to abide by the constitutional 
limits the First Amendment places on the FEC, and whether you 
are substiuting your view of the law for that of Congress and 
the courts.
    Moreover, this esteemed and honored member of the 
California Bar is not the only one questioning your ability to 
faithfully enforce the laws as passed by Congress and upheld by 
the courts. According to the nonpartisan government watchdog 
group, the Fair Government Foundation, you have steadfastly 
refused to accept the clear meaning of the Supreme Court 
precedent because, in the words of the Fair Government 
Foundation, ``it so conflicts with your fervently held 
regulatory beliefs--beliefs that are less a product of the FECA 
or court cases than a personal philosophical disposition.''
    You yourself have made this clear in open meetings of the 
FEC when the agency was considering the express advocacy 
regulation discussed in Mr. Klausner's letter. During those 
deliberations, you responded to a discussion of the Supreme 
Court's precedents on express advocacy by declaring, ``The 
Court just didn't get it.''
    Can you tell the committee why you believe, as you have 
stated on the record in open session of the Commission, ``The 
Supreme Court just didn't get it'' on express advocacy, and, 
more importantly, how your disagreement with this Supreme Court 
decision might affect your duties as Commissioner?
    Mr. McDonald. Mr. Chairman, thank you. I will be happy to. 
I am not sure I can go back to the direct quote since I don't 
recall that direct quote, but there's a number of things that I 
would like to address since you brought them up.
    Let's start with the Christian Action Network, if we might, 
or any case that we have proceeded on in a court of law. Let's 
remember that it takes four votes to proceed on any matter, so 
if the suggestion is that my votes on any particular case are 
either partisan or not fair, the only thing I could remind the 
Chair is you do have to have a bipartisan vote to proceed in 
any court proceeding.
    On the Fair Government Foundation, I'm a little surprised 
because, as you know, they had a very substantial audit of our 
ommission for--that they did over a 3-year period analyzing our 
cases, and, in fact, they came to the conclusion that the 
Commission was not partisan in nature.
    Now, very specifically to the point about Buckley, if I 
might for just a minute, I'm not sure what, to be honest with 
you, without looking at a transcript, what they ``just didn't 
get it'' meant. If the discussion is whether or not there are 
words that are outside of the purview of Buckley that other 
courts have, in fact, alluded to that would encompass the 
possibility that it had something to do with the campaign over 
and above issue advocacy, then the answer is yes, I would take 
that position, and I have consistently taken the position that 
I agree with Buckley, I agree with the Furgatch court.
    We looked again the other day, when the Court in Shrink PAC 
v. Missouri, the Court again addressed some of these issues and 
indicated in a concurring opinion, actually, by one of the 
Justices that they may look into other aspects of the law that 
they feel the Congress may or may not want to pursue.
    The Chairman. But, Commissioner, that was a case about hard 
money contributions, was it not?
    Mr. McDonald. That was. And in relationship to--
    The Chairman. And my question to you is about your views 
with regard to the express advocacy/issue advocacy dichotomy 
and your observation that the Supreme Court didn't get it.
    Mr. McDonald. Yeah, I--I must tell you, Mr. Chairman, that 
I just don't know without looking at the full context of that 
statement. I'd have to go back and think or at least analyze 
it, but I'd be more than happy to submit it for the record.
    The Chairman. Senator Schumer has joined us. I had another 
question, but--
    Senator Schumer. No, I'll wait.
    The Chairman. Okay. Commissioner McDonald, I also want to 
talk about the best efforts regulation that was invalidated in 
1996. The Federal Election Campaign Act requires the treasurer 
of a political committee to make ``best efforts'' to gather and 
report to the FEC the name, ddress, occupation, and employer of 
donors giving more than $200 a year.
    Mr. McDonald. That's correct.
    The Chairman. In 1979, the FEC issued regulations stating 
that the best efforts standard was satisfied if the committee's 
solicitation included a clear request for the information.
    In 1992, you advocated an amendment of the best efforts 
regulation to require that committees make a follow-up request 
for required information after the initial solicitation. This 
regulation, which you supported, required the follow-up request 
to contain the following statement: ``Federal law requires 
political committees to report the name, mailing address, 
occupation, and name of employer for each individual whose 
contributions aggregate in excess of $200 in a calendar year.''
    In RNC v. FEC, decided in 1996, the D.C. Circuit 
invalidated this mandatory statement in the best efforts 
regulation that you championed because it was ``unreasonable 
and contrary to the statute, inaccurate and misleading.'' This 
is because, as the court explained, ``the Federal Election 
Campaign Act, as enacted by Congress, does not require 
political committees to report the information for each donor. 
It only requires committees to use their best efforts to gather 
the information.''
    The mandatory statement that you championed was simply a 
misstatement of the law as enacted by Congress, that is clear 
to anyone reading the statute. Fortunately, the court rejected 
your apparent view that ``Congress authorized the Commission to 
forbid political committees from accurately stating the law.'' 
So, my question is, if you could tell us why you supported a 
regulation that required political committees to make a 
statement about the law that was, as the court said, ``Contrary 
to the statute, inaccurate and misleading''?
    Mr. McDonald. Mr. Chairman, I will be happy to. I must go 
back for just one second. I am sounding more powerful than even 
Brad is here today. I can't champion anything, as you know. I 
don't remember whether that was passed unanimouly or not by the 
Commission. You may well have that vote. You can't proceed at 
the request of a commissioner. I certainly was for that by the 
way. And it couldn't be a more timely question.
    It was before this very Committee that a chairman said to 
me or actually said to our Commission to be more specific, that 
what is the problem with all of these other candidates filing 
with the Federal Election Commission? I turn in all of my 
records, I adhere 100 percent to the rule of law and I look at 
my opponents who have 50, 60 and 70 percent of noncompliance. 
We all discussed that after we left the Rules hearing because 
we felt like that it was a valid point, and I think any time 
that candidates who comply with the statute look across at 
their opponents and find out that they do not, they seem to be 
somewhat disappointed and they start with the Federal Election 
Commission.
    And we did take a good look at it because I think your 
point is a very good one. The law is about compliance and 
disclosure. If, in fact, you don't have compliance and 
disclosure of the very fundamental aspects of the law that you 
outlined, then I think it is a problem. The Commission went 
back and looked at it. If you want to say I championed it, 
that's is all right, I will be willing--I think I would be 
willing to accept that. I am not sure I championed it, but I 
certainly would be for it without any question, as a practical 
matter, as were a number of my colleagues, the court decided 
that that was not correct. Unlike Brad Smith, I agree, the 
court spoke. We, as you well know, went back and reconstituted 
it again.
    But I do think that the effort to try to get the 
information on the public record was a very important matter. I 
must say to you that I don't know of anyone at the Commission 
that thought it was deliberately misleading the public. That 
was certainly not the intention. And as I think you will see if 
you look at the record, I think but I'm not sure, that that was 
probably passed--well, I shouldn't say that. I don't know i. It 
may have been unanimously but I don't really know.
    The Chairman. Commissioner, the FECA prohibits people from 
using donor data for political or commercial solicitations and 
other commercial purposes so that the disclosure necessary to 
bring transparency to the system is not going to result in 
harassment of donors.
    In FEC v. Political Contributions Data, Inc., you voted for 
the FEC to bring an enforcement action against a private 
company that was selling reports, analyzing donations to 
Federal candidates. The lists the company sold did not include 
the donors' addresses or telephone numbers and contained a 
disclaimer warning against using the list to get donations or 
advance commercial purposes.
    Despite the fact that these lists were devoid of the 
contact information that could make them viable tools for 
commercial and political solicitations, you took the position 
that the company was violating the commercial use prohibition. 
Apparently you deemed it enough that the company was charging 
people for compiling analysis of donations to campaigns.
    You advocated an enforcement action that resulted in a 
Second Circuit Court of Appeals ruling that your interpretation 
of the commercial use prohibition, under which the company was 
prosecuted, was ``an unreasonable restrictive interpretation of 
the provision in question.'' The court emphasized that the 
lists could not be used for commercial or political purposes 
because they were devoid of addresses and phone numbers. The 
court also made clear that by seeking to prohibit ``the 
distribution of Appellant's contributor list,'' you ``defied 
the Congressional intent behind the FECA, namely to require 
disclosure of campaign contributions and contributors in order 
to inform the electorate where campaign money comes from, to 
deter corruption and to enforce the Act's contribution 
requirements.''
    Your interpretation of the commercial use rule was so 
contrary to the clear Congressional intent of the FECA that the 
Second Circuit ruled that it was not substantially jstified in 
law or fact, and ordered the FEC to use taxpayer funds as it 
did in the Christian Action Network litigation case, to pay the 
fees the company incurred defending the enforcement action that 
you had voted to pursue. According to the court, the 
interpretation that you championed was ``unreasonable in that 
it frustrated the intent of Congress and might jeopardize First 
Amendment rights.''
    I think the Second Circuit was correct in observing that in 
bringing a case on a theory such as this which you, 
Commissioner McDonald, endorsed, you clearly defied, if you 
will, the will of Congress. So, the question is, why did you 
vote to pursue an enforcement action that was predicated on an 
interpretation of the law that as the court said, ``frustrated 
the intent of Congress and might jeopardize First Amendment 
rights''?
    Mr. McDonald. Thank you, Mr. Chairman. I wasn't sure you 
were finished. I apologize.
    Well, again, I can only tell you what--there are two very 
important matters to keep in mind, I am developing more 
strength all the time as I hear it referred to me, again, you 
have to have a four votes of the Commission. I don't know what 
the vote on that was. We know we at least had a four-vote 
majority to proceed in that case. It is interesting that that 
would be a criticism. Normally what we have found from this 
body, and rightfully so, is the concern the other way.
    As we well know in this day and time, with lists, any kind 
of list, it's very easy if you have a partial part of the list, 
that is to say the name, in particular, it is not difficult, of 
course, to be able to get other information in accordance with 
that. I think you can go to your computer at any point and pull 
up virtually anything like that you want to know.
    Now, if the position of the Chairman is that we went too 
far, I think that is certainly an arguable point. Certainly 
four of us or more felt like that it was something that should 
be preserved for the candidates and for their contributors. 
Because I think the first partof that statement that you 
indicated was that kind of concern and I believe that is a 
serious concern.
    I think the concern in relationship to contributors and 
their privacy and the candidates as well should be maintained. 
And I think your assessment of what the court did was right, 
but I felt, as did a majority of my colleagues, that it was 
something we should pursue.
    The Chairman. Senator Dodd.
    Senator Dodd. Well, thank you.
    Mr. Chairman, why don't I turn to the Senator from New 
York, if he would like to make an opening statement and then 
reclaim some time for some questions.
    Senator Schumer. Well, thank you.
    I thank both my friend, the Senator from Connecticut, and 
our Chairman, the Senator from Kentucky, for the opportunity to 
say a few words. I guess there are three points that I would 
like to make here.
    The first is, obviously, as is well known, I am a strong 
advocate of campaign finance reform. I believe that there has 
just got to be a lot of change in the system. I believe that it 
is corrosive in many ways to people's trust and I also 
believe--and this is where I fundamentally disagree with the 
Senator from Kentucky, although I have to respect him because 
he is consistent on a lot of issues like flag burning and 
others, but I don't believe that the First Amendment is 
absolute in any way. It is, I believe, a vital amendment but 
just as Justice Holmes said, you can't scream fire in a crowded 
theater, which is, in fact, an impingement on First Amendment 
rights. I believe, for instance, talking about Buckley v. 
Valeo, your ability to put the same ad on television for the 
437th time is not as strong as your ability to put it on the 
first time.
    And, so, I think if we want to find a proper balance 
between good representative government and First Amendment 
rights, we would move the pendulum on campaign finance reform 
further over rather than move it back.
    Having said that, I have not put a hold on this nomination 
despite my strong views. I believe that we should go forward, 
hav a full debate on this issue and then let people vote the 
way they choose. That is what we should be doing with many 
judges, who are lined up waiting to be heard. Judge Piaz, for 
instance, waited four-and-a-half years and now at least he will 
get his fair hearing on the floor of the Senate. And, 
particularly, you know, the FEC is a place that calls for some 
Democrats, some Republicans. That doesn't mean necessarily that 
every view is going to be represented but certainly in the 
legislation it calls for diversity of viewpoints. So, there is 
a point there.
    But I must tell you that I believe that Mr. Smith, despite 
his erudition and despite taking on good faith your comments 
that you will uphold the law, I don't think you should be on 
that board and I think we should fight it out on the floor and 
here is the reason why.
    Assuming, which I do--I have no reason to dispute--that you 
will make decisions in accord with the law not in accord with 
your personal views and Senator McConnell has done his usual 
mastery of work trying to point out that everybody has that 
problem, I just think nothing could send a worse signal to 
everyone who has to obey the campaign finance laws and people 
who support the campaign finance laws, than nominating somebody 
whose views are as absolute as yours are.
    I agree with you that the kinds of analogies that have been 
made to people like Flynt or David Duke of Milosevic are 
uncalled for. I think it is a pretty fair analogy to say that I 
would not want to nominate an Attorney General who did not 
believe in incarcerating people, even if that person said they 
would uphold the laws. I would say I would not want a police 
chief who did not believe--I would not want to nominate a 
police chief who believed that prison was absolutely uncalled 
for in serious crimes.
    I think even if I believed that that police chief or that 
Attorney General would uphold the law, I think it would send a 
terribly wrong signal to criminals in the country to have an 
Attorney General or criminals in that loclity to have a police 
chief who believed the other way.
    So, I don't--and by the way, on a recent vote one judge 
that we rejected on the floor of the Senate was Judge Ronnie 
White, some of my colleagues got up and said that they did not 
want to nominate him because of his views on capital 
punishment. Now, Judge White had already held, upheld several 
capital punishment cases in the Missouri court. But they said 
they just didn't want to see somebody on the bench, even though 
he had already proven to uphold the law, be there.
    I think, you know, I didn't agree with their view. I agree 
with their view on capital punishment, I didn't agree with 
their view on Judge White. I voted for him. I thought he was a 
fine jurist. But the same standard could be used here as well.
    We have a serious problem in this country, which is that to 
most observers there is too much either appearance or 
relationship between raising money and policy. I don't say, I 
don't pick any specific instance. I think that is wrong and 
unfair. I think there is a general cloud out there. And I think 
John McCain's campaign, ill-fated though it was, proved that 
there is far more popular belief that that occurs than we would 
like to admit here, many of us would like to admit here. I 
think it is corrosive. Not corrosive on individual's ethics, 
but corrosive on the body politic--the relationship, the trust, 
the bond, that people have with their government.
    I think nominating someone such as yourself, Mr. Smith, who 
has strong views, who is not a politician, who is an academic 
person, who I respect, is exactly the wrong thing to do at this 
time. So, I will respectfully oppose your nomination. I will 
argue forcefully here and on the floor of the Senate that it 
shouldn't be.
    But I don't believe that we should prevent that debate. I 
hope you are defeated fair and square on the floor, not 
defeated for lack of a vote or a debate.
    Thank you, Mr. Chairman.
    The Chairman. Thank you, Senator Schumer.
    Senator Dodd.
    Senator Dodd. Ys. Thank you, Mr. Chairman.
    Let me again state, Mr. Smith, I appreciate your statement 
and your opening comments that you will leave the legislating 
to Congress and constitutional interpretation to the courts. 
The focus of my inquiry has to do with the issue you addressed 
in your opening comments and that is your willingness to 
enforce the laws, whether you agree with them or not. That is a 
critical question for those of us who care deeply about the 
role of the Federal Election Commission. And you have been, as 
you pointed out, both an academician, a professor and, so, your 
role is now going to change: a substantial difference here 
between commenting on the actions of a commission to which you 
may become a member, very shortly.
    So, I would like to address those questions dealing with 
enforcement based on your writings, where you have spoken 
extensively on the constitutionality of some of these 
provisions. While I generally do not agree with your positions, 
my questions are not intended to argue with your 
interpretations as much, although I certainly would, but to 
utilize this forum here to elicit some comfort level that 
regardless of your views that you so fervently hold, that you 
can, nonetheless, exercise your constitutional obligations to 
uphold the law.
    In your written testimony you state that although you do 
not know the ``inside history'' of enforcement actions--and I 
am quoting you there--had you been a member of the Commission 
at the time you would have voted against taking enforcement 
action in the case of the FEC v. The Christian Action Network, 
a case that has already been discussed at some length here with 
the Chairman's questions.
    Your reasoning, as I understand it, is that you view the 
position of the Commission as unconstitutional. Your apparent 
prejudgment of the necessity for an enforcement action concerns 
me in this case. If what you are saying is regardless of the 
arguments to the contrary, you would not support enforcement 
actions if, in your opinion, you believe them to be 
nconstitutional, then I might suggest here this morning that 
you are going to marginalize your tenure on the Commission 
before you even are confirmed.
    Certainly the fact is that numerous votes of the Commission 
were required in this case, seven I believe, and every one of 
those seven votes required a majority of four Commissioners to 
proceed, including at least one member of the Republican Party 
that was part of that Commission. That isn't inside history, in 
a sense, that is by operation of statute, that is the only way 
you can proceed.
    I have two questions. Are you suggesting that by supporting 
this action, those Commissioners--and I would stress that there 
were at least four--who voted to proceed with this action are 
somehow acting in an unconstitutional manner in violation of 
their oath?
    Mr. Smith. I believe, first, of course, when I say I would 
have voted against it, that's presuming that nothing would have 
come up on those inside deliberations that would have called 
for another conclusion. But I don't think it would have, and 
the reason I say that is that by the time of Christian Action 
Network, there was already some fairly good precedent going 
forward, and certainly by the time that decisions were made on 
appeals there was good precedent going forward that the 
Commission's position would be struck down by the courts.
    So this was not a judgment based on my independent reading 
of the Constitution; rather, it was a judgment based on a 
number of court decisions, including Faucher v. FEC, and FEC v. 
Central Long Island Tax Reform immediately out of the Second 
Circuit. You had multiple circuits already giving strong 
indications, I think, that the FEC was going to lose in 
Christian Action Network and lose badly.
    And I think that what you've done--as you know, four 
Commissioners voted for it--and I'm not saying those 
Commissioners were unreasonable, but I think what you've 
pointed out is that this is where the Commission has had 
difficulties in the past.
    The areas where I tend to be in disagreemet with what the 
state of the law is are relatively easy areas to deal with, 
where contributions exceed limits and so on. Had I been on the 
Commission and the case had come forward under Federal law 
rather than State law--I'm thinking of the Shrink PAC v. 
Missouri case recently decided by the Supreme Court, which was 
a State case--had that been a Federal case, a group clearly 
spending more than the statutory limit allowed or contributing 
more than the statutory limit allowed, I would have had no 
problem voting for enforcement action in that kind of case.
    But in a case like Christian Action Network, I think I 
would have looked and said I don't think we can go in this 
direction. I don't believe that the rule of law is enhanced by 
sort of trying to stretch everything to the limits of 
enforcement whenever you can. I think, rather, you have to show 
restraint where the courts indicate that restraint is required. 
And it has been my view that the Commission's resources would 
be better used to attack the more routine cases, to cut down 
the backlog, to cut down the number of dismissals for 
staleness, basically, and to engage in a reallocation of 
resources.
    I agree, for example, with much of what the Senator from 
New York stated, at least when he began by saying that he was a 
strong advocate for reform. I think I'm a strong advocate for 
reform. My reforms are somewhat different. He gets to vote on 
them.
    He believes that change is necessary. I believe that change 
is necessary. He believes that there is a corrosive effect. I 
believe that there is a corrosive effect. But I believe, given 
the current state of the law, we only add to that corrosive 
effect when the Commission goes off on this sort of 
adventuresome litigation, spending the resources of taxpayers. 
You know, it's often been said that this is a Commission--and 
there may be some solid grounds for it--that is underfunded to 
begin with, and then it spends its money on this type of 
litigation. I think that is an error.
    And I think one role that I would play--I don't think you'd 
want a Commission with six academics on it, or even five, but 
maybe one or two might be good at playing a little role in 
looking at the law in a somewhat different way and pulling the 
Commission back toward the center on questions such as issue 
advocacy.
    Senator Dodd. Well, the reason I raise the question of 
whether or not the other Commissioners had acted 
unconstitutionally, in violation of their oath, is that it 
seems to me that aside--in addition to looking at the 
constitutionality of the issue, you would want to consider the 
facts beyond just reacting in an academic fashion. I appreciate 
your desire to have an academician on the Commission, somewhat 
self-serving but, nonetheless, I appreciate your desire to have 
one.
    [Laughter.]
    Senator Dodd. But also we have to obviously deal in real 
cases and certainly not unmindful of constitutional 
interpretation, although, as you point out in your opening 
comments, your job is not to interpret the Constitution. You 
leave that to the courts.
    What concerns me, as I look at your writings--now, again, 
you're going to be fulfilling a different role here is whether 
or not you are going to disregard specific facts, and disregard 
the views of other Commissioners that are examining this, and 
also disregard the fact that you can't write a regulation 
without there being reams of attorneys someplace who are trying 
to find some way to get around it.
    As we all know here the day that Bill Clinton was sworn 
into office, there were 45 pages on the World Wide Web--45 
pages worldwide. Eight years later, there are 45,000 pages 
added to the World Wide Web every minute. We could not have 
imagined--we can't even sit here and imagine--the technological 
advances, the cute and sophisticated ways to game the system in 
a way that the courts could not have imagined a year ago, let 
alone 25 years ago.
    So it requires, it seems to me, a Commission not to be so 
restricted as to be unmindful of the kind of innovations and 
efforts that exist every day by people all across the political 
spectrum to find some way to get around the provisions included 
in the law. It seems to me incumbent, then, on the 
Commissioners not to allow for regulations to be adopted that 
are clearly violative of what the law intended, but also not to 
be unmindful of the fact that there are people out there every 
day trying to find out some way to avoid the application of a 
regulation.
    And so I come back to the question again and give you a 
chance to respond to it. Given the role now that you may 
assume, how do you feel about looking at facts? You said in 
your own words that you are ``quite sure'' that you would have 
voted against the action. What I want to know, I guess, is are 
you suggesting that in the future you will similarly feel 
compelled to determine the need for enforcement actions without 
the benefit of specifics of a case and the input of other 
Commissioners?
    Mr. Smith. I think, Senator, I think it's a good point that 
you raise, and I see what you're trying to get at. I think it's 
an important point.
    I know the facts of Christian Action Network from the 
extensive judicial opinions that have followed. So it's not 
like I'm speaking about a case where I don't feel I have any 
knowledge of the facts of the case. And when I say I'm quite 
sure, what I mean by that is I don't suspect that there were 
any other facts that came up in the Commission hearings. And, 
again, as I noted in the testimony, I don't know that for a 
fact. But I don't suspect that there was anything that would 
have made me analyze the case differently from a legal point of 
view.
    Had there been, of course, we would have looked at it 
differently. The point that I'm trying to make there is that I 
do believe that the Commission has often stretched its 
authority too far. I think that's obvious when you lose a case 
and a court actually sanctions you. I'm not saying the 
Commission has acted--th Commissioners acted 
unconstitutionally. Commissioners have tough decisions to make. 
But it strikes me as being clear by this point that maybe a 
somewhat different perspective is needed on the Commission.
    And I would suggest to you, I do think that, for example, 
you'll make mistakes. You have to enforce--you have to draft 
regs, and sometimes those regs will be struck down. I mean, I 
don't expect any agency to have a perfect record in enforcement 
actions or in challenges to regulations.
    Recently there was a case, FEC v. Christian Coalition, 
decided here in the district of the District of Columbia, and I 
had read news reports on the case when the opinion first came 
out, noting that the judge had found one incident of express 
advocacy. And so I got the opinion, and I began to read the 
opinion. As I'm reading the opinion, I ran across it in the 
facts of the case, which begins with--it talks about Ralph 
Reed, then the director of the Christian Coalition, going out 
and making a speech in Montana. And I don't remember the exact 
things that he said in that speech, but, oddly enough, as I was 
reading that, I thought to myself, ``Ah, well, there's the 
express advocacy.'' Right?
    Well, no, it turned out that wasn't the express advocacy. 
If anything, I was far more liberal in my construction of 
express advocacy than, in fact, the court was. The court held 
that Reed's speech had been issue advocacy and could not be 
regulated.
    So I would expect that I, too, would make mistakes. But I 
think in the way in which the Commission has had problems, 
again, that it needs somebody who perhaps leans a little bit 
toward the other side, again, to pull it back to the center. I 
think the Commission has gone off constitutional center on the 
question of issue advocacy.
    Senator Dodd. Well, as I said at the outset here, by 
longstanding tradition we have generally accepted the notion 
that political parties in this case have a right to put people 
forward who share their views. And, clearly, in your case, I 
think you do comevery close to sharing the views of a majority 
of the Republican Party in Congress when it comes to campaign 
finance reform. So I respect that. But also I know that it is 
going to be necessary to really enforce the law and, again, 
relying on your skills as a lawyer and someone who understands 
this law, to be very, very mindful of what the facts are.
    Let me cite another example, if I can, and this is what 
concerns me, because even though you are writing articles, it 
is not the same as taking a vote on a commission. We rely on 
legal, scholarly works and major journals to form some of our 
opinions. Again, I made reference earlier to the fact that you 
wrote an article in 1998 for the Connecticut Law Review.
    You argued in that article that campaign finance reform 
efforts are misplaced and have distracted attention from 
addressing other concerns such as the resurgence of what some 
call true corruption, vote buying and voter fraud. In support 
of your contention in that article, which I have read, you 
cited a June 1997 article as showing, and I quote from your 
statement, ``very credible evidence of fraud also surround the 
1996 U.S. Senate election in Louisiana.''
    As this committee well knows--the chairman and I were a 
part of this--we determined in October of 1997 that the so-
called evidence of fraud in the contest was anything but 
credible, and we voted unanimously on this committee to abandon 
the preliminary investigation and allegations of fraud and 
other irregularities.
    Even recognizing your role as an academic observer at the 
time, in light of the outcome of the election position, your 
uncritical reliance, in my view, on the Louisiana example as 
anecdotal evidence to support your assertion troubles me 
because, again, this is a very scholarly work.
    My question is this: If confirmed, are you willing to 
thoroughly review the facts of pending cases before making 
similarly conclusive statements about the quality of evidence 
in enforcement cases?
    Mr. Smith. I assume, Senator, that this Committee would not 
have investigated that race had it not felt there was some kind 
of credible evidence of fraud. And I'm very gratified that, in 
fact, it turned out on closer investigation that it was not 
there. But certainly writing in the spring of 1997 my 
conclusion was no different than that of the U.S. Senate which 
decided this race was worth investigating, and all I write in 
that article is that there are allegations of fraud and there's 
enough credibility to them that they're being investigated.
    I almost find myself wondering how can a person think that 
that was a radical statement given that the Senate did an 
investigation into that matter.
    Senator Dodd. Why didn't you find some other example to 
use, maybe, where that decision had already been rendered 
rather than jumping ahead of a decision by this committee? We 
hadn't rendered one by then, and a good academician might have 
decided to hold off on deciding that case, wait a couple of 
years, and see how the committee voted before you determined in 
an article which will be around for a long time. There is no 
footnote in that case to refer to later to see how the 
committee voted.
    Mr. Smith. No, there is not. One of the things that you 
have to decide as an academician is how much you want your work 
to be current, how much you want it to be precise. You know, 
one thing one gets credit--or criticized for sometimes is, 
``Ah, well, you know, that's in the past, you're not current 
enough, you're not up on current events and current 
literature.''
    Again, I would stand by that footnote now. I think it was 
accurate. I think what the Senate did reflects that it was 
accurate, though I would not at this point write, or write 
again, that there was evidence of a problem there.
    The Commission itself, the Election Commission, is often 
called upon to respond to allegations and determine whether 
they are credible. And I think this is exactly what we're 
called upon to do, and I don't see in that statement any 
prejudgment of facts.
    The Chairman. If I could just interject on the Louisiana 
case, to say to my friend from Connecticut, we didn't all 
conclude there was no fraud in the election. Some of us thought 
that there was some. The issue was whether it was substantial 
enough to change the outcome of the election, and clearly the 
Rules Committee did not think that there was such fraud of a 
substantial nature as to change the outcome of the election.
    Senator Dodd. No, I appreciate that.
    The Chairman. Yes.
    Senator Dodd. My point is, you are writing for a scholarly 
journal. There are examples where there have been allegations 
of fraud that have been categorically proven to be such. I 
don't think it's an illegitimate argument to say that resources 
ought to be allocated to going after clear cases of corruption 
in the political process. But my view is here, instead of 
citing one that was still pending in terms of a final 
determination, just the judgment factor in using that case 
rather than others that were somewhat contemporaneous to the 
time the article was being written would have demonstrated 
better judgment.
    We are sitting here making--I am not going to argue with 
you about whether or not you think there are too much resources 
being spent on questionable issues or whether or not on clear 
cases. At the time we have debated that. We will discuss it 
again and again and again, I presume. The question we have to 
make here is the suitability of someone to serve on a 
Commission. Their prior record and how they arrive at 
decisions--you made a decision in writing that article to cite 
that case--is relevant.
    Mr. Smith. Yes, I did.
    Senator Dodd. And I think it is a legitimate issue for me 
to raise why you cited that case which was pending rather than 
cite some other cases where clearly you would have been on much 
more solid footing in arriving at that conclusion as evidence 
of where the Commission ought to spend its resources.
    Mr. Smith. I cited that case because it was current, it was 
in the news as I was writing, and I cited it for largely the 
same reasons that you chose to investigate it.
    Senator Dodd. Now, much of your writing, of course, 
predates the Supreme Court decision in the Shrink v. Missouri 
PAC case and consistently argues that money is not a corrupting 
influence in elections and, consequently, is an invalid 
rationale for reform. And, obviously, I don't share your 
position on that, nor does my colleague from New York, but I 
appreciate your perspective. And certainly an academician is an 
academician, and you are a First Amendment scholar, and I think 
your articles are fascinating and well written.
    The current Supreme Court, however, doesn't appear to agree 
with you. You cited the Justices that disagreed with Buckley v. 
Valeo, but, of course, it is important to point out that a 
majority of the Court reached a different conclusion, and 
certainly they did in the most recent decision by the Court on 
campaign matters.
    So, if confirmed, I want you to tell me whether or not you 
will take an oath to uphold the Constitution not as you 
interpret it but as the courts have interpreted it? In light of 
a ruling in the case of Shrink v. Missouri PAC, are you 
prepared to enforce the laws which are founded on the 
congressional belief that political contributions can corrupt 
elections and need to be limited, as the Court concluded in 
that case?
    Mr. Smith. I would proudly and without reservation take 
that oath.
    Senator Dodd. I thank you.
    Lastly, Mr. Chairman, for Mr. McDonald. I made reference to 
some of the new technologies that are emerging in the area of 
campaigning, the Internet being the one that has most recently 
come on line. There are wonderful advantages to that, 
obviously, the contemporaneous reporting of campaign 
contributions, something I think, in fact, the Bush campaign 
did, which I commend them for. I think that is a wonderful use 
of that technology to allow people to have a contemporaneous 
window on whois supporting them as they seek election.
    But I wonder if you might just share with us quickly what 
in your opinion the FEC should be doing to stay abreast of 
these latest developments, what is being done, and how can and 
must it change its own operations in order to ensure that it is 
not constantly fighting the last war in the enforcement. And, 
lastly, based on your experience both as an administrator and 
long-time Commissioner, are you satisfied that the FEC is doing 
enough to assist State and local election officials with their 
duties where so much of these activities are concentrated?
    Mr. McDonald. Senator, thank you. First of all, let me take 
the last issue first, because being a local election 
administrator for years, the way I first became acquainted with 
the Federal Election Commission was when I was put on the 
advisory panel of the Federal Election Commission when I was 
secretary of the Election Board in Tulsa. And I must say that I 
have a particular fondness for election officials because I 
think at the end of the day they do an awfully good job. They 
find themselves, as you point out, particularly in terms of 
technology, it's always tough at the local level to get money 
for new technology until something goes wrong. Then after it 
goes wrong, you get it, but people never forget what went wrong 
before.
    So we have on our election administration network, which 
used to be called a clearinghouse, we have a relationship with 
all 50 States. We have an ongoing panel that works with State 
and local election officials to try to stay abreast of the kind 
of voter equipment that they use, changes in technology, and, 
in fact, we are proceeding again to update that very sort of 
thing based on the kind of comments you've made.
    Also, in the rules and regulations projects that we have 
ongoing, we have asked the public to come in and testify, and 
we have had just an unbelievable response, I think some 1,200 
inquiries wanting to comment on the changng technology that you 
alluded to. Not only is it true in the information that 
Governor Bush has put forward, probably one of the most 
creative and fastest turn-arounds we've seen in relationship to 
making those contributions known to the general public, but 
we're also doing it in relationship to how you may accept 
money. And we started that in the Presidential election and we 
started with Senator Bradley.
    It is an unbelievable area, and I think it has wonderful 
opportunities for us. But I must tell you that we are also 
concerned about it because it's changing very dramatically how 
we're to do business. And I think it's important that we follow 
up on that in every aspect possible.
    Senator Dodd. Well, I thank you for that. It has been very 
distressing to me over the years that in terms of resource 
allocation, the Commission should be at least capable of trying 
to stay abreast of some of these changes that go on so 
dramatically and so rapidly. It is hard for you to do it if we 
don't provide adequate resources for you to accomplish your 
desired results. And, obviously, by depriving the Commission of 
the necessary resources, it creates a self-fulfilling prophecy 
in terms of the Commission's role. And so my hope would be that 
we will--despite whatever differences we have about how the 
Commission interprets Buckley v. Valeo or the latest case in 
applying or crafting regulations--that we would give the 
Commission the adequate resources to do the job. Certainly the 
Commission should do what Mr. Smith is advocating--and I don't 
disagree with him--that is, going after the clear-cut cases of 
corruption and fraud, but also trying to stay abreast of what 
campaigns are trying all the time. There are people out there 
every day trying to figure out how to get around this law. And 
if we don't have a Commission that is vigilant in that regard, 
if it views candidates as if they of have an unfettered right 
to figure out how to sport and game the system, then we are 
going to be way behind the curve.
    So my hope s, Mr. Smith, if you are confirmed here, you 
will surprise your critics and you will prove, as has happened 
in many cases where people have an assumption of what a person 
is going to be like, to be quite different. You are 
tremendously bright. You are a tremendously talented 
individual. And you have got a good understanding of what First 
Amendment rights are. If you are confirmed to this Commission, 
you could do a lot of good. And so if you are confirmed by the 
Senate, I hope you will accept the criticism in the spirit in 
which it is offered by people who fundamentally disagree with 
at least your writings as they have been presented up to now, 
but understand as well that our expressions here are not the 
expressions of a political party. There is bipartisan support 
for trying to really change these laws, and the public 
overwhelmingly cares about it, deeply cares about it.
    I know it doesn't show up as a great issue when surveys are 
done and education and health care and prescription drugs are 
on the agenda. But I think that is a misinterpretation of how 
the public feels about this, that they are deeply worried about 
the political process that is escaping them and out of touch 
with them. Too often I think it is because we are so consumed 
with raising the money necessary to be heard, that we don't 
listen to the other voices out there that can't afford to 
participate in this process at the level that many others do. 
That worries me, deeply, that we are disengaging. I like the 
fact that people make contributions. I think it's important. 
But if we don't want to bother with a $5 and $10 and $100 
contributor because we can't waste the time, as we seek the 
$1,000, $2,000, $5,000, $10,000, $100,000 contributors, we cut 
off a substantial part of the American public from 
participating in something as fundamental as choosing the 
people who represent them.
    So I would hope as we go forward here, you'd keep that in 
mind.
    The Chairman. Thank you, Senator Dodd.
    Senator Schumer.
    Senator Schumer. Thank you, Mr. Chairman, and, again, I 
thank you, Mr. Smith, for your--and Mr. McDonald, although I 
won't be asking you any questions--for your answers on this. I 
do want to say I see in the front row, daughters. I'm the 
father of daughters the same age, and I just want to tell you 
girls that some of us disagree with your dad on the issues, but 
we think he's a fine man who's doing the best he can, and who 
just disagrees with us.
    Senator Dodd. They don't buy that for a second, Chuck.
    [Laughter.]
    Mr. Smith. I do, actually, and I thank you for that, 
Senator.
    Senator Schumer. Okay. I just went through a campaign where 
my great worry was with all the attack ads, what my daughters 
might start thinking, and so I appreciate that. They are 15 and 
10, probably similar to your ages.
    I have two questions for you, Mr. Smith. You did an 
analysis for the Cato Institute, it was dated September 13th, 
1995, and there you stated that the FECA and its various State 
counterparts are--and these are your words--``profoundly 
undemocratic and profoundly at odds with the First Amendment.''
    So even though we've talked about this, I would just like 
you to--I mean, that's a pretty strong statement. That is not 
just saying I disagree, policy-wise, but saying the whole darn 
thing is unconstitutional.
    Do you have qualms--just address that a little more for us, 
other than just saying you'll enforce the law.
    Do you have personal qualms about enforcing a law which you 
believe to be unconstitutional? Why would you want to enforce 
laws in which you are in such profound disagreement? I mean, as 
we've all talked here, and even the questions that have been 
asked, that's the main job of this Commission. It's not to make 
policy. It's, rather, to enforce laws that exist.
    Mr. Smith. Thank you, Senator.
    When I graduated from law school, I did not have a lot of 
money and I needed a new car, or another car, and so i bought a 
used Ford Escort. It was four years old. I owned that car or 
six years, and with all due respect to the Ford Motor Company, 
in one of whose plants I worked for a summer as a young man, I 
never liked that car.
    But I kept it clean. I changed the oil and I did repairs on 
it when it needed repairs, and nobody ever said to me, ``Brad, 
you don't like that car. Why do you keep it in such good 
shape?''
    I think to be called on to fill a position of public 
service is a great honor, and I think it is because I share 
many of the concerns, in fact, that Senator Dodd just listed, 
even though we may disagree, to some extent, on the solutions, 
that I am interested in filling this position.
    Again, when we talk about complying with the law, or 
following the rule of law, we have to recognize, once again, 
that proper deference to the rule of law does not only mean 
going after and getting penalties against those who have 
violated the law, but it means not going after those who 
haven't. I say that last, recognizing that sometimes 
commissioners, in good faith, will err on the side of excess 
enforcement, and as I pointed out in at least one case, even I, 
you know, the``radical extremist,'' would have erred on the 
side of excess enforcement versus what the Court ultimately 
allowed the FEC to do.
    I would like to see the FEC work better, and I think to a 
point you raised earlier, that I sort of tried to address, but 
I think I lost my train of thought. You know, I do think that 
some of the cynicism of the public comes when they see what are 
obviously violations of the law not being enforced, or when 
they see penalties being levied, three or four or six years 
after a campaign.
    So, again, you know, one of my top priorities on the 
Commission would be to try to improve enforcement in those 
areas, going after these ``meat and potatoes'' cases, going 
after them quickly, getting them done.
    Maybe when that's all done, and all that's left is to go 
further, I'll say I've had enough. I don't know. But it's not 
my intention to say that at this point. I don't know that wecan 
get there even in the five years that would be left on this 
term.
    Senator Schumer. It's not too late to do it now.
    Mr. Smith. Because it is important to me, and because I do 
think what the FEC does is important, that I'm interested in 
the position. I should address the comments you began with, the 
quotes from the Cato study. I wrote that campaign finance 
reform efforts are basically profoundly at odds with the First 
Amendment.
    In Buckley v. Valeo, at 424 U.S. 1, page 50, the Supreme 
Court says that restrictions on issue advocacy are, and I 
quote, ``wholly at odds with the First Amendment.''
    So perhaps like Senator Dodd, you should go after me not 
just for writing law review articles but for writing bad law 
review articles. Maybe I was inadvertently plagiarizing in this 
particular case.
    For me to say something that the Supreme Court has said 
doesn't strike me as radical, and in fact the Supreme Court in 
Buckley struck down substantial portions of the law on 
constitutional grounds.
    In National Conservative Political Action Committee, it 
struck down portions of the law. In Massachusetts Citizens For 
Life, it struck down portions of the law. In Colorado Federal 
Republican Campaign Committee, it struck down an interpretation 
of the law. All of these cases were decided on First Amendment 
grounds.
    So, obviously, there are serious First Amendment problems, 
and I think all of us will agree with that, just as I agree 
that there are serious problems about corruption, and the 
perception of corruption, and just as I have argued that I 
think those problems of corruption are there but overstated, 
others have argued that the First Amendment problems are there 
but not so great. But I think to suggest that this is 
unreasonable is simply not fair.
    Senator Schumer. Except you didn't qualify. You said the 
FECA, not certain portions of the FECA. Obviously, there are 
differences in the whole law. There's advocacy, and then there 
are limits on political contributions. I mean, I have not read 
the aticle but the excerpt I have in front of me seems to 
indicate you feel the whole darn thing is unconstitutional, 
including limits on individual contributions.
    Aren't I correct in that assumption?
    Mr. Smith. Yes, I do think that about contributions, but, 
again, as I've pointed out, that is not an area where the 
Commission has had difficulty enforcing the law, and it's not 
an area where I would see it being difficult to enforce the 
law, and I'm comfortable that the Supreme Court has decided 
that decision. SHRNK PAC did not change anything in the law, 
but it certainly reaffirmed that the Supreme Court is 
comfortable with that distinction.
    We just couldn't get Kennedy and Scalia, and Thomas and 
Blackmun and Burger on the Court at the same time, or maybe we 
wouldn't have that distinction.
    You also mentioned--you know, if you read that article in 
its entirety, in that same article I praised disclosure. So, 
obviously, one who's reading the whole article understands that 
when I say the FECA is at odds, they understand that I'm not 
necessarily referring to every single provision of the law, 
because I wouldn't be sitting there writing an article in which 
I'm also arguing for disclosure, and more disclosure, which is 
part of the FECA.
    As to the other part of that comment, that the laws are 
undemocratic, what I've done there--the term I use, and it's 
explained, in some detail, when I use it again in my Yale Law 
Review article--what I mean to say by that is that campaign 
finance reform has tended to support incumbents against 
challengers in ways that go beyond what I think is justified, 
truly insulating many incumbents from challenges, and I think 
that's well-supported by the political science data.
    I don't know that that's something that's intentional, but 
I think it has been an inadvertent consequence of the system. I 
have noted that given the current constitutional law which 
allows a candidate to spend whatever they want, putting limits 
on contributions has then tended to favor wealthy candidates, 
and promote more and more ultimillionaires running for office, 
because those are the people who have a fund-raising advantage.
    I noted that regulation, as it does in most areas, falls 
most heavily on small entities. Smaller businesses suffer from 
regulation more than big businesses. Grassroots, true 
grassroots political organizations feel regulation more than 
big lobbies like the NRA, or the Sierra Club, or things like 
that.
    So, again, I think the statement that I used there, when 
one reads the entire article, and sees my qualification, I 
wanted a term to describe all these various effects--and I say, 
very clearly, I've chosen the term ``undemocratic.''
    Senator Schumer. Profoundly undemocratic.
    Mr. Smith. Profoundly undemocratic.
    The Chairman. If I could interject. I don't want to keep 
Professor Smith from finishing his--
    Mr. Smith. I think I was finished.
    The Chairman. If I could just interject. If Kathleen 
Sullivan, the dean of Stanford Law School, were sitting where 
Professor Smith is, I have a feeling she'd be sailing through 
to an uncontroversial confirmation, and she has a piece in 
today's New York Times, your home town newspaper, on this very 
issue of contribution limits, which, as Professor Smith's views 
have been described, is some sort--nutty views. Dean Sullivan, 
in today's New York Times, has an article saying she agrees, 
totally, with Professor Smith on this. Let me just read a 
couple of pertinent parts.
    ``Such calls for greater regulation of campaign donations, 
however, ignore the real culprit in the story--the campaign 
finance laws we already have. Why, after all, would any--this 
is talking about the Sam Wiley ads in your state, earlier.''
    ``Why, after all, would any Bush supporter go to the 
trouble of running independent ads rather than donating the 
money directly to the Bush campaign? And why label the ads as 
paid for by Republicans For Clean Air rather than Friends of 
George W. Bush? The answer is the contribution limits that 
Congress imposed in the wake of Watergate, and that th Supreme 
Court has upheld ever since.''
    Her conclusion: ``The result is not only unintended but 
undemocratic.'' The very adjective you are saying that 
Professor Smith had in his Cato piece. Dean Sullivan's 
suggestion: ``The solution is simple. Removal of contribution 
limits, full disclosure, and more speech.''
    This is, as astonishing as it may be to my friend from New 
York, and a number of people on his side of the aisle, this is 
mainstream Republican conservative thinking on this issue, also 
shared by the American Civil Liberties Union. Also shared by 
the American Civil Liberties Union.
    This is not some sort of goofy, off-the-wall notion here. 
So the professor's views are not ones held by him alone. There 
are other very credible people who also share those views.
    Senator Schumer. My riposte to the, my friend from 
Kentucky, is twofold. If Dean Sullivan's views were that she 
thought that contribution limits were profoundly undemocratic 
and profoundly at odds with the First Amendment, I would not 
support her.
    The Chairman. You would be consistent.
    Senator Schumer. Okay. And second, just because the Civil 
Liberties Union is for it doesn't mean that I'm for it. I 
disagree with them on an issue that we disagree on, greatly, on 
gun control, and other things as well. My general view on all 
of these amendments is they're sacred, they're vital, but 
they're not absolute, and if somebody tries to interpret them 
absolutely, I think they miss a whole lot about the flexibility 
of the Constitution, how it is a living, breathing, and 
practical document.
    I didn't like Hugo Black, some of Hugo Black's decisions, 
for that reason, even though he was from my party and way over 
on one side.
    I'd be happy to yield to my friend from Connecticut.
    Senator Dodd. Just one question to you, Mr. Smith. We've 
been kind of dancing around it a bit here, but I get a clear 
sense of where you think the Commission ought to spend its 
time, and I think I've got a pretty good idea as to where you 
think they ough not to spend their time. I'm wondering if you 
would tell us where you would think the actions of the 
Commission would be unconstitutional.
    Mr. Smith. Well, a short time ago, you were criticizing me 
for making judgments on published judicial decisions without 
having been involved in Commission decisions in the past, and I 
think for much those same reasons at this point, it's not 
proper for me to sit and say exactly what the FEC ought to be 
doing in particular areas now.
    I think the FEC has made great strides, as I mentioned in 
my prepared testimony in recent years. The disclosure function 
has obviously improved. They seem to be hacking away at the 
backlog of cases. They're trying to get the regulatory 
rulemaking function I think back on track in issues of 
coordinated expenditures and the Internet.
    I think they're moving with appropriate caution on the 
Internet. I do not know what the answer is to the Internet in 
politics. I am very concerned that if we try to leap in and 
take pre-Internet regulation and apply it to the Internet, what 
we may end up doing is smothering the little guy, the one 
person who finally, now, has the ability to put up a Web page 
and reach thousands of people in a short period of time.
    Yet I recognize that if we decide that the press exception 
applies totally to the Internet, that would undercut virtually 
the entire Federal regulatory system which does, as we've gone 
over and over again, in fact exists, regardless of what I think 
about it.
    So that's a very difficult issue. It's an issue I think the 
Commission needs to pay a lot of attention to. I don't know 
what my feelings are on it. That's one of the things I would 
really want to talk to commissioners who have done a lot of 
work on it--David Mason, who I noticed behind me, I know has 
been particularly involved in that.
    So these are the types of issues facing the Commission. 
Again, I think what I add to the Commission is a little 
different perspective than it has ever had. There has never 
been an academic on the Commission, and, again, I do think that 
in certain areas, with Christian Action Networks being the coup 
de grace, the Commission, for whatever reason, has gone a bit 
offtrack, and that someone like myself can help to pull it back 
to the center where it belongs.
    Senator Dodd. Thank you, Mr. Chairman.
    The Chairman. Thank you, Senator Dodd.
    I'm going to include a closing statement in the record. I 
believe we've completed the hearing. It's my plan to have a 
meeting off the floor of the Senate after the first vote for 
the purpose of reporting out the nominations. We are going to 
complete the record as rapidly as we can, as Senator Dodd has 
requested.

            Closing Statement of Chairman McConnell

    In closing this morning, let me sum up my thoughts on these 
two nominees.
    Professor Smith, I believe that your sin in the eyes of the 
reform industry is twofold: (1) you understand the 
constitutional limitations on the government's ability to 
regulate political speech, and (2) you have personally 
advocated reform that is different from the approach favored by 
The New York Times. I believe that neither your appreciation 
for the First Amendment nor your disagreement with The New York 
Times and Common Cause should disqualify you for service on the 
Federal Election Commission.
    As the numerous letters that have been flooding in to me at 
the Committee establish: Your personally-held views are well 
within the mainstream of constitutional jurisprudence and 
should not bar you from government service at the FEC. 
Personally, I think your views would be a breath of fresh air 
at a Commission whose actions have all too frequently been 
struck down as unconstitutional by the courts.

Two Camps--Neither of Which is Out of Bounds

    As Professor Smith has also noted, the world of campaign 
finance is generally divided into two camps of reasonable 
people who disagree with the Supreme Court's interpretation of 
the First Amendment in Buckley. One camp prefers more 
regulation. Another camp prefers less regulation. Neither camp 
is perfectly happy with the current state of the law.
    One camp is made up of The New York Times, Common Cause and 
the Brennan Center, and scholars such as professors Ronald 
Dworkin, Daniel Lowenstein, and Burt Neuborne.
    The other camp is occupied by citizen groups ranging from 
the ACLU to the National Right to Life, and scholars such as 
Dean Kathleen Sullivan, professors Joel Gora, Lillian Bevier 
and Larry Sabato.
    It's probably fair to say that Danny McDonald is in one 
camp and Brad Smith is in the other. And, I definitely agree 
more with one camp than I do the other. But, I do not think 
agreement with either camp makes a person into a lawless 
radical or a wild-eyed fanatic. And, I certainly do not think 
that membership in either camp should disqualify a bright, 
intelligent, ethical election law expert from a six-year term 
of service on the bipartisan Federal Election Commission.

Enforcing the Law

    Finally, and most importantly, the overwhelming letters of 
support for you, Brad, and your testimony here today convince 
me without a doubt that you understand that the role of a FEC 
Commissioner is to enforce the law as written, and not make the 
law in your own image.
    Critics who have philosophical differences with you should 
heed the words of Professor Daniel T. Kobil, a former board 
member of Common Cause:
    ``I believe that much of the opposition is based not on 
what Brad has written or said about campaign finance 
regulations, but on crude caricatures of his ideas . . . . 
Although I do not agree with all of Brad's views on campaign 
finance regulations, I believe that his scholarly critique of 
these laws is cogent and largely within the mainstream of 
current constitutional thought. . . .
    I am confident that he will fairly administer the laws he 
is charged with enforcing . . . .''
    And, let me add the sentiments of Professor Daniel 
Lowenstein of the UCLA Law School and also a former board 
member of Common Cause:
    ``Smith possesses integrity and vigorous intelligence that 
should make him an excellent commissioner. He will understand 
that his job is to enforce the law, even when he does not agree 
with it.''
    So I say to my colleagues here this morning that I 
personally believe that Professor Smith's intelligence, his 
work ethic, his fairness, and his detailed knowledge and 
understanding of election law will be a tremendous asset to the 
FEC and to the American taxpayers who have been forced to pay 
for numerous FEC enforcement actions that have been struck down 
in the courts as unconstitutional.
    Professor Smith is a widely-respected and prolific author 
on federal election law, and, in my opinion, the most qualified 
nominee in the twenty-five year history of the Federal Election 
Commission. I am firmly convinced that he would faithfully and 
impartially uphold the law and the Constitution as a 
Commissioner at the FEC and I wholeheartedly support his 
nomination.

Comments for Commissioner McDonald

    Now, Commissioner McDonald, I have a few specific thoughts 
on your nomination. First, let me state the obvious: you and I 
are in different campaign reform camps. If I follow the new 
litmus test that is being put forth by some in this 
confirmation debate, then I have no choice but to vigorously 
oppose your nomination.
    Also, I have serious questions about your 18-year track 
record at the FEC. I think that your votes have displayed a 
disregard for the law, the courts and the Constitution. And, it 
has hurt the reputation of the Commission, chilled 
constitutionally protected political speech, and cost the 
taxpayers money.
    All of that being said, Commissioner McDonald, I am still 
prepared to reject this new litmus test whereby we ``Bork'' 
nominations to a bipartisan panel based on their membership in 
a particular campaign finance camp. I am prepared to follow the 
tradition of respecting the other party s choice and to report 
your nomination out of the Committee assuming that your party 
grants similar latitude to the Republicans' choice.
    Thank you both for being here today. I hope that we can 
move this process forward and report your nominations en bloc 
very shortly.
    I thank both of you gentlemen for being here, and my 
intention--I'm not going to apply the standard that Senator 
Schumer's applying to Professor Smith. Otherwise I'd have to 
oppose you, Commissioner McDonald, and assuming Professor Smith 
is confirmed, obviously I will not oppose you. If Professor 
Smith is not confirmed, then that'll be a signal that we're 
going to operate in a new way around here in terms of the 
deference that is given to each party in naming their own 
members of the Commission, which might cause me to reverse my 
position on you, Commissioner McDonald.
    Mr. McDonald. I won't take it personally, Mr. Chairman.
    The Chairman. Good. All right. Well, thank you very much. 
The hearing is concluded. Let me announce that the Committee 
will recess subject to the call of the Chair to vote on these 
nominations. This vote will occur following the first Senate 
floor vote later today.
    [Whereupon, at 11:27 a.m., the committee was adjourned, 
subject to the call of the chair.]

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