[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should be repealed.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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