[Congressional Record Volume 146, Number 19 (Monday, February 28, 2000)]
[Senate]
[Page S862]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                   BRAD SMITH'S NOMINATION TO THE FEC

  Mr. DASCHLE. Madam President, I want to speak briefly on a matter we 
will probably have the opportunity to discuss in greater detail at a 
later time. That has to do with the nomination of Bradley Smith to be a 
Commissioner on the Federal Election Commission.
  The President has made this nomination with the greatest reluctance. 
He delayed it for many months while fending off hard lobbying on behalf 
of Mr. Smith by my colleagues on the other side of the aisle.
  In the end, the President forwarded this nomination to us, 
acknowledging the Republican leadership's strongly held view that, 
under standard practice for FEC appointments, each party is entitled to 
have the President nominate its choice for a Commission seat allocated 
by law to that party.
  I understand the President's decision. He did what he believes that 
he, as President, was required to do, notwithstanding his concerns 
about the suitability of Mr. Smith.
  Now we, as Senators, must do what we are required to do by the 
Constitution--to consider this nomination on the merits.
  I have examined the candidacy of Mr. Smith carefully, guided by only 
one question--indeed the only question that should guide us: Is he 
qualified, as Commissioner of the FEC, to enforce the laws we have 
passed to control federal campaign fundraising and spending?
  In my view, Mr. Smith's complete disdain for federal election law 
renders him unqualified for the role of an FEC Commissioner, whose 
principal job is to administer the Federal Election Campaign Act as 
enacted by Congress and upheld by the courts.
  Madan President, the American people must be able to trust that we, 
as legislators, mean what we say when we write the laws of the land. 
They should not fear that we are passing laws professing the noblest 
motives, while actively working against those laws by whatever means we 
can find.
  Nowhere is there a more critical need for this consistency of purpose 
than in our consideration, enactment and oversight of laws governing 
campaign finance.
  We are, after all, candidates, and also party leaders, directly 
affected, in our own campaigns and political activities, by the 
operation of the Federal Election Campaign Act. Few laws that we pass 
as elected officials more acutely raise the spector of conflict of 
interest--that we might structure rules and encourage enforcement 
policies designed more to serve our own interests than the public 
interest.
  Why would the public not be suspicious, observing our failure 
session-after-session to enact comprehensive campaign finance reform?
  Now our Republican colleagues would like the Senate to confirm Mr. 
Smith. He comes to them highly recommended by those who would oppose 
meaningful controls on campaign finance. And he has earned the respect 
of those in the forefront of the fight against reform.
  Why? Because he believes that ``the most sensible reform . . . is 
repeal of the Federal Election Campaign Act.'' Because he believes that 
most of the problems we have faced in controlling political money have 
been ``exacerbated or created by the Federal Election Campaign Act.'' 
Because he believes that the federal election law is ``profoundly 
undemocratic and profoundly at odds with the First Amendment.'' And 
because--and I quote again--``people should be allowed to spend 
whatever they want.''

  This is the man our colleagues on the other side of the aisle would 
like us to seat on the Federal Election Commission, charged with the 
enforcement of the very laws he believes are undemocratic and should be 
repealed.
  This is not just asking the fox to guard the chicken coop. It is 
inviting the fox inside and locking the door behind him.
  What would be better calculated to promote and spread public cynicism 
about our commitment to campaign finance reform--indeed, cynicism about 
our commitment to responsible enforcement of the law already on the 
books--than confirmation of this nominee?
  In considering this nomination, we are bound by the law we passed 
that speaks specifically to the qualifications required of an FEC 
Commissioner. That law states that Commissioners should be ``chosen on 
the basis of their experience, integrity, impartiality and good 
judgment.''
  Certainly a fair, and in my view fatal, objection could be raised to 
the Smith nomination on the grounds that he lacks the prerequisite 
quality of ``impartiality.'' He would be asked, as a Commissioner, to 
apply the law evenhandedly, in accord with our intent, without regard 
to his own opinions about the wisdom of the legislative choice we have 
made. Yet Mr. Smith has made his academic and journalistic reputation 
out of questioning that choice.
  How will he reconcile that conflict, between his strongly held views 
and ours, in the often difficult cases the FEC must decide? When the 
Commission must enforce our contribution and spending limits, what 
degree of impartiality can be expected of a Commissioner who believes, 
in his words, that ``people should be allowed to spend whatever they 
want on politics''?
  I am concerned, too, about the requirement of judgment. For Mr. Smith 
has insisted for years that the Federal campaign finance laws are an 
offense against the First Amendment of the Constitution, undemocratic 
and in need of repeal. The Supreme Court has held in clear terms to the 
contrary.
  Perhaps Mr. Smith imagined that the Court's jurisprudence had 
changed. If so, he is seriously mistaken, as made plain by the Court's 
decision only weeks ago in the Shrink Missouri PAC decision effectively 
to affirm Buckley v. Valeo.
  A commissioner who neither understands nor acknowledges the 
constitutional law of the land is poorly equipped to balance real First 
Amendment guarantees against real Congressional authority to limit 
campaign spending in the public interest. This is particularly true 
where he questions our laws, not merely on constitutional grounds, but 
on the sweeping claim that they are undemocratic.
  Mr. Smith is an energetic advocate for his views. We can respect his 
wish to express those views, and some indeed may agree with them. But 
this nomination places at issue whether he is the proper choice to act 
not as warrior in his own cause, but as agent of the public, as a 
faithful, impartial administrator of the law.
  I must conclude that he is not the right choice, not even close, and 
so I will oppose that nomination, and I will vote against confirmation.
  I yield the floor.

                          ____________________