[Congressional Record Volume 146, Number 12 (Thursday, February 10, 2000)]
[Senate]
[Pages S600-S601]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
NOMINATION OF BRADLEY SMITH TO THE FEC
Mr. FEINGOLD. Mr. President, the President sent a nomination to the
Senate that anyone who cares about the campaign finance laws in this
country will find very troubling. I speak of the nomination of Bradley
Smith to a 6-year term on the Federal Election Commission. Mr. Smith's
views on the federal election laws, as expressed in law review
articles, interviews, op-eds, speeches over the past half decade are
disturbing, to say the least. He should not be on the regulatory body
charged with enforcing and interpreting those very laws.
Today I am placing a very public hold on this nomination. I will
object to its consideration on the floor and I ask all of my colleagues
who support campaign finance reform to oppose this nomination.
In a 1997 opinion piece in the Wall Street Journal, Mr. Smith wrote
the following:
When a law is in need of continual revision to close a
series of ever-changing ``loopholes,'' it is probably the
law, and not the people, that is in error. The most sensible
reform is a simple one: repeal of the Federal Election
Campaign Act.
That's right, the man who the President has just nominated to serve
on the Federal Election Commission believes the Federal campaign laws
should be repealed. Thomas Jefferson said we should have a revolution
in this country every 20 years. He believed that laws should constantly
be revised and revisited to make sure they were responsive to the needs
of society at any given time. Yet, Mr. Smith sees the need for loophole
closing in the federal election laws as evidence that the whole system
should be scrapped.
In a policy paper published by the Cato Institute, for whom Mr. Smith
has written extensively in recent years, he says the following:
FECA [the Federal Election Campaign Act] and its various
state counterparts are profoundly undemocratic and profoundly
at odds with the First Amendment.
I wonder how Mr. Smith will reconcile those views with his new
position as one of six individuals responsible for enforcing
and implementing the statute and any future reforms that the Congress
might pass. He has shown such extreme disdain in his writings and
public statements for the very law he would be charged to enforce that
I simply do not think he should be entrusted with this important
responsibility.
It is especially ironic and disheartening that this nomination has
been made at a time when the prospects for reform and the legal
landscape for those reforms have never looked better. We are all aware
that certain Presidential candidates have highlighted campaign finance
issues with great success. The public is more aware than ever of the
critical need for reform. Campaign finance reform is and will be a
major issue in the 2000 Presidential race.
In addition, just a few weeks ago, the Supreme Court issued a ringing
reaffirmation of the core holding of the Buckley decision that forms
the basis for the reform effort. The Court once again held that
Congress has the constitutional power to limit contributions to
political campaigns in order to protect the integrity of the political
process from corruption or the appearance of corruption. In upholding
contribution limits imposed by the Missouri legislature, Justice Souter
wrote for the Court:
[T]here is little reason to doubt that sometimes large
contributions will work actual corruption of our political
system, and no reason to question the existence of a
corresponding suspicion among voters.
In my view, the Supreme Court's ruling in the Shrink Missouri case
removes all doubt as to whether the Court would uphold the
constitutionality of a ban on soft money, which is the centerpiece of
the reform bill that has passed the House and is now awaiting Senate
action. One hundred twenty-seven legal scholars have written to us that
a soft money ban is constitutional, and their analysis is strongly
supported by this very recent decision of the Supreme Court.
Mr. Smith has a wholly different view of the core holding of Buckley,
on which the arguments supporting the
[[Page S601]]
constitutionality of banning soft money relies. He wrote the following
in a 1997 law review article:
Whatever the particulars of reform proposals, it is
increasingly clear that reformers have overstated the
government interest in the anticorruption rationale. Money's
alleged corrupting influence are far from proven. . . . .
[T]hat portion of Buckley that relies on the anticorruption
rationale is itself the weakest portion of the Buckley
opinion--both in its doctrinal foundations and in its
empirical ramifications.
In another article, Mr. Smith writes: ``I do think that Buckley is
probably wrong in allowing contribution limits.''
Mr. Smith's view, as quoted by the Columbus Dispatch, is that
``people should be allowed to spend whatever they want on politics.''
In an interview on MSNBC, he said, ``I think we should deregulate and
just let it go. That's how our politics was run for over 100 years.''
He is right about that. Mr. Smith would have us go back to the late
19th century, before Theodore Roosevelt pushed through the 1907 Tillman
Act, which prohibited corporate contributions to federal elections. Mr.
Smith has expressed the view that a soft money ban would be
unconstitutional. He wrote the following in a paper for the Notre Dame
Law School Journal of Legislation:
[R]egardless of what one thinks about soft money, or what
one thinks about the applicable Supreme Court precedents, a
blanket ban on soft money would be, under clear, well-
established First Amendment doctrine, constitutionally
infirm.
A majority of this Senate has voted repeatedly in favor of a soft
money ban. I cannot imagine that that same majority will vote to
confirm a nominee who believes such a ban is unconstitutional. We need
an FEC that will vote to enforce the law and to interpret it in a way
that is consistent with congressional intent. I simply have no
confidence--I do not know how I can get confidence--that Mr. Smith will
be able do that--how can he? It would be completely at odds with his
own loudly professed principles.
This is not a matter of personality. I have never met Mr. Smith. I am
sure he is a good person. I do not question his right to criticize the
laws from his outside perch as a law professor and commentator. But his
views on the very laws he will be called upon to enforce give rise to
grave doubt as to whether he can faithfully execute the duties of a
Commissioner on the FEC. It is simply not possible for him to distance
himself from views he has repeatedly and stridently expressed now that
he is nominated. We would not accept such disclaimers from individuals
nominated to head other agencies of Government.
The campaign finance laws are not undemocratic. They are not
unconstitutional. They are essential to the functioning of our
democratic process and to the faith of the people in their government.
As the Supreme Court said in the Shrink Missouri case:
Leave the perception of impropriety unanswered, and the
cynical assumption that large donors call the tune could
jeopardize the willingness of voters to take part in
democratic governance. Democracy works only if the people
have faith in those who govern, and that faith is bound to be
shattered when high officials and their appointees engage in
activities which arouse suspicions of ``malfeasance and
corruption.''
In the wake of that clear declaration by the Court, how can Bradley
Smith continue to rationalize the gutting of the Federal Election
Campaign Act? And how can we allow him the chance to carry it out as a
member of the FEC?
We need FEC Commissioners who understand and accept the simple and
basic precepts about the influence of money on our political system
that the Court reemphasized in the Shrink Missouri case. We need FEC
Commissioners who believe in the laws they are sworn to uphold. We do
not need FEC Commissioners who have an ideological agenda contrary to
the core rationale of the laws they must administer.
The public is entitled to FEC Commissioners who they can be confident
will not work to gut the efforts of Congress to provide fair and
democratic rules to govern our political systems. I will oppose this
nomination and I urge my colleagues to do the same.
I yield the floor.
The PRESIDING OFFICER (Mr. Smith of Oregon). The Senator from South
Carolina.
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