[Congressional Record Volume 146, Number 65 (Tuesday, May 23, 2000)]
[Senate]
[Pages S4261-S4290]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




NOMINATION OF BRADLEY A. SMITH, OF OHIO, TO BE A MEMBER OF THE FEDERAL 
                     ELECTION COMMISSION--Continued

  The PRESIDING OFFICER. Under the previous order, the distinguished 
Senator from Wisconsin is recognized.
  Mr. FEINGOLD. Thank you, Mr. President.
  Today we are debating a nomination that may be just as important to 
the cause of campaign finance reform as any bill that has been 
considered by the Senate in recent years. Tomorrow's vote on the 
nomination of Brad Smith may be just as significant for campaign 
finance reform as any of the votes we had on those bills.
  The issue here is the nomination of Brad Smith to a 6-year term on 
the Federal Election Commission, and I oppose that nomination.
  Like other speakers, I take note of the photograph of Brad Smith's 
family shown today on the floor only to make a point that this 
nomination is certainly not analogous to treatment that has been given 
to judicial appointments, where we have had to wait for years and years 
for a confirmation vote. Mr. Smith was just nominated a couple of 
months ago. So this has not been a long drawn out delay of his 
nomination that would do harm to him, his family, or anybody else. In 
fact, I rejected that kind of approach to his nomination because, as 
far as I know, Professor Smith is a perfectly reasonable man in terms 
of his integrity and his academic ability and the like. He deserved a 
vote on the floor and he is going to get it, a lot faster than many 
judicial nominees that President has sent to us.
  The problem is that Professor Smith's views on Federal election laws 
as expressed in Law Review articles, interviews, op-eds, and speeches 
over the past half decade are startling. He should not be on the 
regulatory body charged with enforcing and interpreting those laws.
  So when words are used on the floor such as ``vilification,'' or 
questioning his integrity, or any other excuse not to get to the real 
issue, I have to strongly object. This debate is simply on the merits 
of what Professor Smith's views are of what the election laws are or 
should be.
  Over the course of the debate--and I note that a number of my 
colleagues will be joining me on the floor to set out the case against 
Professor Smith--we will explain, and I hope convince, our colleagues 
and the public that this nomination has to be defeated.
  Let me again make it clear, because I think there was some attempt to 
suggest the opposite, that I hold no personal animus towards Professor 
Smith. It is not a matter of personality. 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 carry out the responsibilities of a Commissioner on 
the FEC. It just isn't possible for us to ignore the views he has 
repeatedly and stridently expressed simply because he now says he will 
faithfully execute the laws if he is confirmed.
  We would not accept, nor should we accept, such disclaimers from 
individuals nominated to head other agencies of government. Sometimes a 
cliche is the best way to express an idea. Professor Smith on the FEC 
would really be the classic case of the fox guarding the hen house.
  Let me illustrate this by pointing out the views of Bradley Smith 
that caused me and many others who care about campaign finance reform 
to have a lot of concern about his being on the FEC.
  Professor Smith has been a prolific scholar on the first amendment 
and the Federal election laws, so there is a rich written record to 
review. Let's start with one of his most bold statements. In a 1997 
opinion in the Wall Street Journal, Professor 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 Elections Campaign 
     Act.

  That is right. The man who we may be about to confirm for a seat on 
the Federal Election Commission believes the very laws he is supposed 
to enforce should be repealed. Thomas Jefferson said we should have a 
revolution in this country every 20 years. He believed laws should 
constantly be revised and revisited to make sure they are responsive to 
the needs of citizens at any given time. Yet Professor Smith sees the 
need for closing a loophole in the Federal elections laws as evidence 
that the whole system, the whole idea of campaign finance reform laws, 
should be completely scrapped. In other words, what would be the 
purpose of the Federal Elections Commission under his view of the 
world?
  A majority of both the House and the Senate have voted to close the 
loophole in the law known as soft money. We know that loophole is 
undermining public confidence in our elections and our legislative 
process. We have seen that loophole grow until it threatens to swallow 
the entire system. Many Members think it already has. A majority of the 
Congress wants to fix that problem. We are willing to legislate to 
improve an imperfect system. But Brad Smith wants to junk the system 
entirely and let the big money flow, without limit.
  So what are we doing? We are about to put somebody with that view on 
the body charged with enforcing laws we pass. I don't think this makes 
any sense.
  Another statement by Professor Smith that I think should give us 
pause, in a policy paper published by the Cato Institute, for whom 
Professor

[[Page S4262]]

Smith has written extensively, he says the following:

       The Federal Election Campaign Act and its various State 
     counterparts are profoundly undemocratic and profoundly at 
     odds with the First Amendment.

  Of course, this is consistent with his views that the Federal 
Election Campaign Act should be repealed. The FEC has loopholes and 
doesn't work. Not only that, it is profoundly undemocratic and 
profoundly at odds with the first amendment.
  How can a member of the FEC, how can Brad Smith, reconcile those 
views with his new position as one of six individuals responsible for 
enforcing and implementing the statute and any future reforms that 
Congress may 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 just don't think he should be entrusted with this important 
responsibility.
  Let me repeat, this nominee says that the Federal Election Campaign 
Act is profoundly undemocratic and profoundly at odds with the first 
amendment. Every bit of it. I am sure this body doesn't agree. Is it 
profoundly undemocratic to believe that the tobacco companies, the 
pharmaceutical companies, and the trial lawyers shouldn't be pouring 
money into campaigns through the parties, while they seek to influence 
legislation that affects their bottom lines? Is it profoundly 
undemocratic to believe that $20,000 per year is enough for a wealthy 
person to be able to contribute to a political party? Is it profoundly 
undemocratic to argue that the spending of outside groups to attack 
candidates should be reported? That the public has a right to know the 
identities and financial backers of groups that run vicious, negative 
ads against candidates just weeks before an election?
  I, for one, take great pride in being a strong defender of the first 
amendment. I wouldn't vote for a bill that was ``profoundly at odds 
with the first amendment,'' and I don't think my colleagues, who form a 
majority of the Senate in support of campaign finance reform, would 
either. But we are being asked to confirm to a seat on the body that 
will implement these laws someone who views these laws and our views as 
totally illegitimate.
  Professor Smith does believe, apparently, that disclosure is a good 
thing, but that is all the regulation he wants to see in our elections.
  In another article, Professor Smith writes: I do think that Buckley 
is probably wrong in allowing contribution limits. He believes and he 
reaffirmed this belief in the hearings on his nomination held by the 
Rules Committee that contribution limits are unconstitutional. 
Professor Smith's view, as quoted by the Columbus Dispatch, is that 
people should be allowed to spend whatever they want on politics. 
Whatever they want. He thinks there is no problem with unlimited 
contributions, none. Congress need not concern itself with that issue 
at all, apparently. In an interview at MSNBC he said: I think we should 
deregulate and just let it go. That is how our politics was run for 
over 100 years.
  Think about what this is. We are asking somebody to enforce our 
election laws who says, literally, ``just let it go.'' That is some 
enforcement. Professor Smith would have us go back to the late 19th 
century before Theodore Roosevelt pushed through the 1907 Tillman Act 
and prohibits corporate contributions to Federal elections.
  The limits on contributions from individuals to candidates--the very 
core of the campaign finance law that the Supreme Court upheld in 
Buckley v. Valeo and again in Nixon v. Shrink Missouri Government PAC--
Brad Smith would junk these provisions along with the very statute that 
created the FEC, the body on which he now seeks to serve.
  Professor Smith thinks that contribution limits are expendable 
because, in his view, the concerns about corruption are just overblown.
  Let's look at what Mr. Smith has to say about that: He wrote 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.

  Well it just so happens, Mr. President, that the U.S. Supreme Court 
doesn't agree. Just a few months 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.

  Mr. Smith thinks the dangers of corruption are overblown. The Supreme 
Court says they are obvious. Professor Smith's disdain for campaign 
finance reform is so great that he won't even admit the most basic fact 
about our political life. That at some point, in some amount, 
contributions can corrupt. Or at least they look like they corrupt, 
which the Supreme Court recognized is just as good a reason to limit 
contributions to politicians. The appearance of corruption, Mr. 
President. We all know it's there. We hear it from our constituents 
regularly. We see it in the press, we hear about it on the news. But 
Brad Smith says the corrupting effect of money on the legislative 
process is far from proven.
  Back home if I said that at any town meeting that is a laugh line. 
Americans scoff at the notion that big money is not corrupting our 
system.
  The Supreme Court held, and by the way, this wasn't a narrowly 
divided Supreme Court decision in the Shrink Missouri case. This was a 
6-3 decision, with a majority containing four Justices appointed by 
Republican Presidents including Chief Justice Rehnquist. The Supreme 
Court held as follows:

       Buckley demonstrates that the dangers or large, corrupt 
     contributions and the suspicion that large contributions are 
     corrupt are neither novel nor implausible. The opinion noted 
     that the deeply disturbing examples surfacing after the 1972 
     election demonstrate that the problem of corruption is not an 
     illusory one.

  ``The problem of corruption is not an illusory one,'' said the Court. 
The Supreme Court got it 25 years ago. Brad Smith still doesn't believe 
it. Professor Smith says: ``Money's alleged corrupting influence are 
far from proven.'' That's what this debate is all about, Mr. President. 
If someone can't even see the danger in unlimited contributions, 
how can he adequately fulfill his duties as an FEC commissioner?

  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.

  Now, 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 need 
FEC Commissioners who will be vigilant for efforts to evade the law, to 
avoid the clear will of the Congress. We need FEC Commissioners who 
will be alert to the development of new and more clever loopholes, 
tricks by candidates or parties or advocacy groups to avoid 
constitutionally valid limits on their activities or requirements that 
they operate in the light of day. We do not need FEC Commissioners who 
have an ideological agenda contrary to the core rationale of the laws 
they must administer.
  As any American who has been watching ``The West Wing'' in recent

[[Page S4263]]

weeks knows, nominees to the FEC come in pairs, one Democratic, one 
Republican. And the members of the Commission by tradition are 
suggested by the congressional leadership to the President. Now it 
would be a pipe dream to think that the President would actually 
nominate two Commissioners at once who favor campaign finance reform, 
as has happened on TV. No, for reality to imitate art to that extent 
that would be too much to hope for. But at least we shouldn't put the 
foremost academic critic of the election laws on the Commission. Surely 
the Republican leadership can suggest another qualified individual for 
this post who doesn't believe the election laws should be repealed.
  We all know this nomination was made as part of an agreement to get a 
vote on the confirmation of another presidential nominee last year. I 
am sorry that the Senate's great responsibility to advise and consent 
to nominations has become a game of political horse trading. In the 
end, I think the country suffers when these kind of games are played, 
but I know it goes on, and I did not stand in the way of this most 
recent agreement to bring Mr. Smith to a vote as part of a larger 
package of nominations. But we still have a duty of advise and consent 
on each nomination, and I ask my colleagues to take a very hard look at 
this particular nomination and after doing so I hope you come to the 
conclusion to vote no.
  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 campaigns. The time has come 
for the Senate to say no. The nomination of Brad Smith should not be 
approved.
  I reserve the remainder of my time and I yield the floor.
  Mr. WELLSTONE. Mr. President, I rise today to join my colleague, 
Senator Feingold, and strongly oppose the nomination of Bradley A. 
Smith to the Federal Election Commission. Mr. Smith has no confidence 
in federal election law, indeed he believes it to be ``undemocratic'' 
and ``unconstitutional.'' As a member of the FEC he will have the 
opportunity to put those views into practice and actually shape 
election law through rulemaking. But worst of all, Mr. Smith doesn't 
just disagree with the law, he disagrees with the express purpose of 
the law--limiting the corrupting influence of money in politic. An FEC 
nominee who's own personal beliefs and philosophies are so at odds with 
the purposes and authority of the Federal Election Campaign Act should 
be rejected by a pro-reform Congress.
  I oppose the Smith nomination not only because his philosophies are 
antithetical to present law, but because I believe they are 
antithetical to broad political participation, to lowering the price of 
access to the legislative process, restoring Americans faith in our 
system, and they are antithetical to everything that is necessary for a 
functioning democracy.
  But before I make my case that the Senate should reject this 
nomination, let me say this. I have met Mr. Smith and found him to be 
an earnest and learned advocate of his point of view. I have no reason 
to question Mr. Smith's honor or his intentions and even his harshest 
critics do not make the claim that Mr. Smith does not have a strong 
technical understanding of the law. He seems to be a good guy, so this 
is not personal and I hope that he does not take my criticisms 
personally. But I do feel that given Mr. Smith's views, he is a poor 
fit for this job.
  Mr. Smith is a very vocal and articulate critic of current election 
law--to say nothing of the various reform proposals introduced by 
members of this body. In fact, Mr. Smith is widely regarded as one of 
the foremost critics of the current campaign finance system. He has 
written numerous articles on the subject, he has frequently appeared 
before Congressional Committees, sat on panels and has appeared on 
television. Throughout the body of his writings and public appearances 
he has been consistent: He believes the Federal Election Campaign Act 
is unworkable, unconstitutional, and undemocratic.
  Mr Smith takes the argument one step further: he is an aggressive 
proponent of near complete deregulation of the campaign finance system 
and believes that nearly any attempts to regulate the relationship 
between money and elections is folly. For example, in a 1997 Georgetown 
Law review article Mr. Smith states quote:

       I have previously argued at length that campaign finance 
     regulation generally makes for bad public policy. Campaign 
     finance regulation tends to reduce the flow of information to 
     the public, to favor select elites, to hinder grass roots 
     political activity, to favor special interests, to promote 
     influence peddling, and to entrench incumbents in office.

  I don't want to belabor this point. Other colleagues are speaking to 
this issue and in all honesty it's the least of my objections to the 
nomination. But in all I would simply say this to my colleagues: I 
cannot remember a time when this body confirmed a nominee--for any 
executive position--who's own views were so completely at odds with the 
law he was meant to uphold. Mr. Smith claims that his own strong 
opinions notwithstanding he can and will enforce the law. Still, I 
don't see how he can be true to both the law and his convictions. He 
will be responsible for administering a law that in his view that pose 
a threat to ``political liberty.'' He will be appointed to perpetuate a 
system that he feels was made ``more corrupt and unequal'' by the 
Federal Elections Campaign Act. Speaking for myself, I would not want 
to be charged with enforcing a law that is antithetical to everything I 
know about politics, democracy, and good government--as Smith feels 
about current law. But the Senate is being asked to confirm a nominee 
with just that perspective.
  If the FEC were simply an empty vessel, mindlessly executing the will 
of the Congress as stated in the Federal Election Campaign Act, Mr. 
Smith's extreme views would be trouble enough. But that isn't how the 
system works. And, in fact, the FEC has considerable leeway in 
interpreting FECA when it issues rules. The following are three 
examples of how a person with Smith's attitudes about the law could do 
a lot of damage to the integrity of the system of regulations that 
govern election spending:
  No. 1. Redefining ``coordination''--Under current law, contributions 
to candidates are limited, but independent spending is unlimited. In 
order to avoid evasion of the contribution limits, the law specifies 
that any spending that is done in coordination with a candidate counts 
as a contribution to the campaign. However, the FEC currently is 
considering a proposed rulemaking that would define ``coordination'' so 
narrowly as to make it meaningless. Under the proposed rule, there 
would be no coordination unless the FEC could prove that a candidate 
specifically requested an expenditure, actually exercised control over 
the expenditure, or reached an actual agreement with the candidate 
concerning the expenditure. This rulemaking, if approved, would open a 
massive loophole that would enable a spender to maintain high level 
contacts with a campaign and still claim to be acting independently. 
This is a prime example of how a Commissioner can eviscerate the law 
while claiming to enforce it.
  No. 2. Neglecting to close the ``soft money'' loophole--Soft money--
which the Senate has spent years trying to ban--was basically 
``created'' by an FEC interpretation of the law. Recently, a complaint 
filed by five members of Congress and a separate complaint filed by 
President Clinton have urged the FEC to close the ``soft money'' 
loophole administratively. The FEC's Office of General Counsel has 
submitted a notice of proposed rulemaking which outlines the steps that 
the Commission can take to close the ``soft money'' loophole if it so 
chooses. Brad Smith's view that it is unconstitutional to prohibit 
``soft money'' makes it likely that he would reject a recommendation 
from the General Counsel to close the ``soft money'' loophole.

  No. 3. Regulation of election-related activity over the internet--The 
FEC is currently considering the whole range of issues raised by the 
use of the internet to conduct political activity. This is a largely 
uncharted area, and the current and future FEC Commissioners will play 
an important role in determining how internet communications will be 
treated under the law. Brad Smith's view that the federal government 
should scrap all of its campaign

[[Page S4264]]

finance reform efforts can be expected to strongly color his policy 
judgment about what regulations the FEC ultimately should issue in this 
area of the law.
  I want my colleagues to be clear on this point: This nominee is no 
empty vessel. He will have the opportunity to actually shape election 
law through rulemaking--colleagues shouldn't kid themselves that FEC 
commissioners can just ``follow the law'' and that their personal 
biases don't matter. An anti-campaign finance law Commission, can 
promote anti-campaign finance law rules.
  Mr. President, I do want to take some time to get to the heart of my 
objection to the Smith nomination: He doesn't just disagree with the 
law, he disagrees with the express purpose of the law. The express 
purpose of the Federal Election Campaign Act is to limit the 
disproportionate influence of wealthy individuals and special interest 
groups on the outcome of federal elections; regulate spending in 
campaigns for federal office; and deter abuses by mandating public 
disclosure of campaign finances. Mr. Smith doesn't just quibble with 
how the law achieves those goals, he disagrees with those goals 
completely! Mr. Smith believes that money--regardless of how much or 
where it comes from--has no corrupting or disenfranchising influence on 
elections.
  For example lets look at what Smith wrote on the effect of money on 
how the Congress conducts its business, on what gets considered and 
what doesn't, on who has power and who does not. This is from ``The 
Sirens' Song: Campaign Finance Regulation and the First Amendment.'' 
Smith argues:

       If campaign contributions have any meaningful effect on 
     legislative voting behavior, it appears to be on a limited 
     number of votes that are generally related to technical 
     issues arousing little public interest. On such issues, prior 
     contributions may provide the contributor with access to the 
     legislator of legislative staff. The contributor may then be 
     able to shape legislation to the extent that such efforts are 
     not incompatible with the dominant legislative motives of 
     ideology, party affiliation and agenda, and constituent 
     views. Whether the influence of campaign contributions on 
     these limited issues is good or bad depends on one's views of 
     the legislation. The exclusion of knowledgeable contributors 
     from the legislative process can just as easily lead to poor 
     legislation with unintended consequences as their inclusion. 
     But in any case, it must be stressed that such votes are few.

  Let me explain what I find so chilling about this statement. It would 
be one thing if Mr. Smith argued that money had no effect on policy. 
That regardless of the endless anecdotes and personal testimonials of 
members of Congress past and present, that having lots of money on your 
side buys you no extra influence in Congress. Some members of this body 
take that position. I think it's wrong, I think it's naive, I think the 
American people see through it. In other words, it would be bad enough 
if that was Smith's view. But isn't. He asserts that money plays a role 
but only on ``technical issues that arouse little public interest''--
but worse, doesn't seem to be concerned about it!
  It does not appear to matter to Brad Smith that money affects the 
process on those issues that outside of the public attention! Well with 
all due respect, most of what we do takes place below the surface here! 
We pass bills with scores of obscure provisions, hundred of pages long. 
No one knows what they all do, we can't know. We vote on them without 
knowing. It is there that the system is most ripe for abuse, where the 
greatest potential exists for those with the money, the clout, the 
access to game the system, but Mr. Smith isn't much worried about it.
  I agree with Smith that it is the small, stealth provisions which are 
most likely to appear or disappear because of money. But where I 
strongly disagree with Smith is that I believe that this is a problem. 
It should be aberrational, not typical. I think it's outrageous that 
because a person is in a position to donate $200,000 to the NRSC or the 
DSCC that person is in a position to dictate policy--regardless of how 
obscure. I think it's wrong that a line in a bill can be bought and 
paid for with a campaign contribution. I think it's wrong that a patent 
extension or favorable tariff treatment is up for sale. Because the 
matters are obscure, they are even more ripe for abuse. I won't speak 
for my colleagues, but I'd like the Commissioners on the FEC to be 
concerned with these abuses.
  For example, I point my colleagues to an excellent article in the 
February 7 issue of Time magazine entitled ``How to Become a Top 
Banana'' by Donald Barlett and James Steele. This article details how 
it came to pass that the U.S. government imposed 100% tariffs on 
obscure European imports in an ongoing attempt to force the European 
Union to allow market access for Chiquita Bananas. As the article 
notes, the U.S. Trade Representative imposed tariff rates on products 
essential to the economic health of several U.S. small businesses to 
promote the interests of a firm who does not even grow its bananas in 
the United States. As it turns out, campaign contributions may have 
played a big role. The article concludes:

       So what does the battlefield look like as the Great Banana 
     War's tariffs approach their first anniversary? Well, the 
     operators of some small businesses, like Reinert, are limping 
     along from month to month. Other small-business people are 
     filing fraudulent Customs documents to escape payment. Other 
     businesses are doing just fine because their suppliers in 
     Europe agreed to pick up the tariff or it applies to just a 
     small percentage of the goods they sell. In Europe as in 
     America, small businesses have been harmed by the U.S. 
     tariffs. Larger companies have been mostly unaffected. And 
     the European Union has kept in place its system of quotas and 
     licenses to limit Chiquita bananas. Who, then, is the winner 
     in this war?
       That's easy. It's the President, many members of Congress 
     and the Democratic and Republican parties--all of whom have 
     milked the war for millions of dollars in campaign 
     contributions--along with the lobbyists who abetted the 
     process. A final note. While Lindner (owner of Chiquita 
     banana) had many areas of political interest beyond his 
     battle with the European Union, a partial accounting of the 
     flow of his dollars during the Great Banana War--as measured 
     by contributions of $1,000 or more--as well as lobbying 
     expenditures on the war, shows: Republicans--$4.2 million, 
     Democrats--$1.4 million Washington lobbyists--$1.5 million.

  Just look at the bankruptcy bills passed by the House and the Senate. 
I'm told Committee staff refer to the provisions based on which 
industry ``paid'' for them. This provision is for the credit card 
companies, this one for the real estate industry, and so on it goes. As 
the Wall Street Journal noted on April 20 in an article entitled 
``Bankruptcy Reform Pits Industries Against Each Other'':

       Lawmakers like to portray the battle over bankruptcy reform 
     as a clash of principles: stopping debtors from shirking 
     their obligations or creditors from fleecing the needy. But 
     in the back rooms of Capital Hill, the nature of the fight 
     changes. Industry lobbyists, many ostensibly allied in favor 
     of bankruptcy overhaul legislation, vie to carve out as many 
     favors for their clients as possible at the expense other 
     business groups. These contests pit auto companies against 
     credit card issuers, retailers against Realtors and the 
     Delaware bar against lawyers from the rest of the U.S.

  Again, the major political parties seem to be the major winners in 
all of this (well, aside from the lenders)--and certainly not low and 
moderate income debtors. Contributions from the lending industry to 
both parties since 1997 tops $20 million.
  But that doesn't much concern Mr. Smith, the man who would be in 
charge of enforcing our campaign finance laws.
  Smith even argues even more explicitly that tying legislation to 
campaign contributions is not necessarily a bad thing. Or at least that 
being attentive to campaign contribution will make politicians more 
attentive to the public. He argues in ``A Most Uncommon Cause'':

       What reformers mean by corruption is that legislators react 
     to the wishes of certain constituents, or what, in other 
     circumstances, might be called `responsiveness.' The 
     reformist position is that legislators shape their votes and 
     other activities based on campaign contributions. They call 
     this corruption. Money dominates the policy making process, 
     they argue, unfairly frustrating the popular will. . . . For 
     one this, it is proper, to some extent, for a legislator to 
     vote in ways that will please constituents, which may, from 
     the legislators viewpoint, have the beneficial effect of 
     making those constituents more likely to donate to the 
     legislators re-election campaign.''

  But who does it make them more attentive to? The wealthy, the heavier 
hitters, the tiny proportion of the population who can make substantial 
contributions to candidates. Again, the fact that Smith admits this is 
the case is not surprising. Many critics of private money in politics 
draw the same conclusion. What colleagues should find outrageous is 
that Smith, again,

[[Page S4265]]

sees nothing wrong with this relationship.
  It is the money in politics which has stripped away from many 
Americans the capacity to have one's vote weigh as much as the person 
in the next polling booth, to have a vote in the South Central, LA to 
be worth as much as a vote in Beverly Hills. The vote is undermined by 
the dollar. The vote may be equally distributed, but dollars are not. 
As long as elections are privately financed, those who can afford to 
give more will always have a leg up--in supporting candidates, in 
running for office themselves, and in gaining access and influence with 
those who get elected. We all know this is the way it works. And the 
American people know it, too.
  Bizarrely, though, Smith argues that wealth, and therefore the 
ability to affect elections is distributed equitably enough through out 
our society that the inordinate influence of money is not inordinately 
concentrated among a small subset of the population. In a 1997 piece 
entitled ``Money Talks: Speech, Equality, and Campaign Finance'' Smith 
states:

       Very few citizens have the talent, physical and personal 
     attributes, luck of time and place, or wealth to influence 
     political affairs substantially. Thus a relatively small 
     number of individuals will always have political influence 
     far exceeding that of their neighbors. However, to the extent 
     that wealth (however that might be defined) than there are 
     citizens capable of running a political campaign, producing 
     quality political advertising, writing newspaper 
     editorials, coaching voice, and so on. In other words, it 
     may be true that more people are ``good looking'' than 
     rich, it may be true that more people are ``educated'' 
     than rich. However, the number of people capable of 
     meaningful nonmonetary contributions to a political 
     campaign--that is the type of contribution that will give 
     the individual some extra say in policy-making--is much 
     smaller than the group of monied people.

  I frankly think this argument is ridiculous and insulting. It 
suggests that if you're not a $500 an hour consultant telling the 
candidate to wear earth tones, if you're not a big name pollster you 
can't make a meaningful nonmonetary contribution to a political 
campaign. No one who has actually run for office would hold this view. 
Taken to a logical extreme its effect would be to limit participation 
by those other than the monied elite--the hundred of folks who 
volunteer at a phone bank, put up yard signs, or write letters to the 
editor. My point is that almost everyone has something to offer 
regardless of how wealthy they are.
  But there is a larger point here; the fact that Brad Smith believes 
that there are more people in America capable of donating $1000 than 
there are people who can take a few afternoons to lick envelopes. I'm 
not sure where Smith comes by this view but it obviously falls on its 
face.
  Of course, it does explain where Smith is coming from. I mean, if you 
believe that money is speech and that campaign contributions profoundly 
impacts the legislative process, you are one of two things: You are 
either a defender of a political oligarchy of the wealthy and well-
heeled or you believe that this money, this power, is distributed 
equally throughout society. To be fair to Smith, he genuinely seems to 
hold the latter view. But while this might be a less cynical reason to 
be comfortable with money influencing politics, he's still flat out 
wrong. In fact, he has it completely backward.
  The picture of those who contribute the vast majority of money to 
candidates under the current contribution limits does not look like 
America, it is overwhelmingly white, male, and wealthy. A study 
conducted of donors in the `96 election found the following 
characteristics of such donors: 95 percent were white, 80 percent were 
male, 50 percent were over 60 years of age and 81 percent had annual 
incomes of over $100,000. The population at large in the United States 
had the following characteristics at that time: 17 percent was non-
white, 51 percent were women, 12.8 percent were over 60, and only 4.8 
percent had incomes over $100,000.
  For example, the organization Public Campaign found that during the 
1996 elections, just one zip code--10021, in New York City--contributed 
$9.3 million. There are only 107,000 people in that exclusive slice of 
Manhattan real estate and the vast majority (91 percent) are white. On 
the other side of the lop-sided equation are 9.5 million residents of 
the 483 U.S. communities that are more than 90 percent people of color. 
They gave $5.5 million. Are these groups equal before the law?
  Additionally, Only a spectacularly small portion of U.S. citizens 
contribute more than $200 to political campaigns. In the first half of 
1999:

       Only 4 out of every 10,000 Americans (.037%) has made a 
     contribution greater than $200.
       As of June 30, 1999 only .022% of all Americans had given 
     $1000 to a presidential candidate.
       In the `98 election, .06% of all Americans gave $1000, or 1 
     in 5000.

  So again, Smith has the argument precisely backward, because so few 
can effectively participate through campaign contributions it is 
inherently unequal means of political participation. The fact that a 
few actors--big corporations, Unions, the truly wealthy--have nearly 
limitless funds to pour into races exacerbates the disparity between 
the average citizen and the monied citizen. But other means of 
political participation are inherently limited--no matter who you are, 
there are still no more than 24 hours in a day or seven days in a 
week--do no one has that much of an advantage.
  But Smith goes further than simply arguing that campaign 
contributions can buy legislative favors, he argues in ``Money Talks'' 
that money is speech--not in the sense that it buys speech or allows 
for getting out the candidates message--but in the sense that making a 
campaign contribution is an act of symbolic, political speech in of 
itself. This argument, I should point out to colleagues, goes way 
beyond the Supreme Court's linkage between speech and money in Buckley. 
Smith argues:

       The Court's rationale that contribution limits only 
     ``marginally'' burden First amendment rights is suspect on 
     its own and at odds with the traditional First Amendment 
     right of association. The Court was correct that the size of 
     a contribution does not express the underlying basis of 
     support, but wrong when it held that it involved ``little 
     direct restraint on political communication.'' Is not a 
     substantially different message communicated when a local 
     merchant pledges $10,000 to one charity (or political 
     campaign) and just $25 to another? In such an instance, is it 
     not the size of the donation, rather than the act of 
     donating, that sends the strongest message to the community? 
     It is true that the basis of support for the cause (or 
     candidate) remains vague, yet the message in each gift is 
     substantially different.
  Combined with the fact that only a tiny percentage of voting citizens 
are making large hard money contributions (much less truly massive soft 
money contributions) Smith is advocating for a system where much 
political speech is effectively closed to most Americans because they 
can't muster the means to make a send a loud ``message.''
  If money equals speech, we can clearly see who we are letting do all 
the talking--or at least those are the folks that we're listening to. 
The hopes, dreams, concerns, and problems of the vast majority of the 
American people are going unheard because the bullhorn of the $1,000 
contribution drowns them out. Why would be want to make that bullhorn 
bigger and louder? Why would we want to give greater access and more 
control to those who already have it locked up? But that is the 
direction that this FEC nominee would see us go in.
  Like Smith, I too am a critic of our mechanism for financing of 
elections. This current system of funding congressional campaigns is 
inherently anti-democratic and unfair. It creates untenable conflicts 
of interests and screens out many good candidates. By favoring the deep 
pockets of special interest groups, it tilts the playing field in a way 
that sidelines the vast majority of Americans. But unlike Smith, I 
support reforms that would expand political participation. Unlike Smith 
I have no illusions that inequities in wealth--in a system where wealth 
rules--do not result in a distorted product.
  In 1966 in the case of Harper versus Virginia State Board of 
Elections, the Supreme Court struck down a poll tax of $1.50 in 
Virginia state elections. The Court stated in its decision that, quote, 
the ``State violates the Equal Protection Clause of the Fourteenth 
Amendment whenever it makes the affluence of the voter or payment of 
any fee an electoral standard. Voter qualifications have no relation to 
wealth.''
  In 1972 in Bullock versus Carter, the Court again faced the issue of 
wealth in

[[Page S4266]]

the electoral process and again stated that such a barrier was 
unconstitutional. This time, the question concerned a system of high 
filing fees that the state of Texas required candidates to pay, in 
order to appear on the primary ballot. The fees ranged from $150 to 
$8,900.
  The Court invalidated the system on Equal Protection grounds. It 
found that, with the high filing fees, quote: ``potential office 
seekers lacking both personal wealth and affluent backers are in every 
practical sense precluded from seeking the nomination of their chosen 
party, no matter how qualified they might be and no matter how 
enthusiastic their popular support.''
  The ``exclusionary character'' of the system also violated the 
constitutional rights of non-affluent voters. ``We would ignore 
reality,'' the Court stated, ``were we not to find that this system 
falls with unequal weight on voters, as well as candidates, according 
to their economic status.'' unquote. These cases may have no literal 
legal implications for our system, where deep pockets--either one's own 
or one's political friends--are a prerequisite for success. But they do 
have a moral implication.
  I do believe that in America's elections today we have a wealth 
primary, a barrier to participation to those who are not themselves 
wealthy or who refuse to buy in to monied interests. Is it an absolute 
barrier? No. Does it mean that every candidate for federal office is 
corrupt? No. However, the price we pay is what the economists would 
call the ``opportunity cost.'' It is a cost represented by lost 
opportunities, by settling for those who are most electable rather than 
those who are the best representatives of the American people. And I do 
not believe that in a system where money equals power, inequality of 
wealth can be reconciled with equality of participation.
  That, I say to my colleagues, is why I cannot support Mr. Smith's 
nomination. And it isn't that he is a critic of the present system. 
Indeed I agree with Smith that fixing the system is not fundamentally 
an issue of tightening already existing campaign financing laws, no 
longer a question of what's legal and what's illegal. The real problem 
is that most of what's wrong with the current system is perfectly 
legal.
  Many people believe our political system is corrupted by special 
interest money. I agree with them. It is not a matter of individual 
corruption. I think it is probably extremely rare that a particular 
contribution causes a member to cast a particular vote. But the special 
interest money is always there, and I believe that we do suffer under 
what I have repeatedly called a systemic corruption. Unfortunately, 
this is no longer a shocking announcement, even if it is a shocking 
fact. Money does shape what is considered do-able and realistic here in 
Washington. It does buy access. We have both the appearance and the 
reality of systemic corruption.
  I wonder if anyone would bother to argue that the way we are moving 
toward a balanced federal budget is unaffected by the connection of big 
special-interest money to politics? The cuts we are imposing most 
deeply affect those who are least well off. That is well-documented. 
The tax breaks we offer benefit not only the most affluent as a group, 
but numerous very narrow wealthy special interests. Does anyone wonder 
why we retain massive subsidies and tax expenditures for oil and 
pharmaceutical companies? What about tobacco? Are they curious why we 
promote a health care system dominated by insurance companies? Or why 
we promote a version of ``free trade'' which disregards the need for 
fair labor and environmental standards, for democracy and human rights, 
and for lifting the standard of living of American workers, as well as 
workers in the countries we trade with? How is it that we pass major 
legislation that directly promotes the concentration of ownership and 
power in the telecommunications industry, in the agriculture and food 
business, and in banking and securities? For the American people, how 
this happens, I think, is no mystery.
  For this reason, I support public financing of elections. It is a 
matter of common sense, not to mention plain observation, that to 
whatever extent campaigns are financed with private money, people with 
more of it have an advantage and people with less of it are 
disadvantaged.
  I think most citizens believe there is a connection between big 
special interest money and outcomes in American politics. People 
realize what is ``on the table'' or what is considered realistic here 
in Washington often has much to do with the flow of money to parties 
and to candidates. We must act to change this, but a vote for Smith is 
to move the FEC, and the debate over campaign finance reform, in the 
opposite direction.
  Despite his obvious command of the law, Brad Smith has shown himself 
through his writings to be completely insensitive to the realities of 
political participation in America. He is smart enough to know better. 
The Senate should send a message that it is smart enough to know better 
too. I urge a no vote.
  Recently, a complaint was filed by five Members of Congress and a 
separate complaint filed by President Clinton which urged the FEC to 
close the soft money loophole. Brad Smith's view that it is 
unconstitutional to prohibit soft money makes it likely he will reject 
any recommendation from general counsel to close the soft money 
loophole.
  Regulation of election-related activity on the Internet--the FEC is 
looking at a whole range of issues that are based upon or deal with the 
use of the Internet to conduct political activities. Again, I do not 
know the potential for all the abuses and the ways in which people can 
attack and people can raise money for the attack and what they can do 
on the Internet. I do know Brad Smith's view that the Federal 
Government should scrap all of its campaign finance reform efforts can 
be expected to strongly color his policy judgment about what 
regulations the FEC ultimately should issue in this area of law.
  For other colleagues who are thinking of coming to the floor, I will 
not take a lot more time. I will reserve the remainder of my time. I 
want to put forth a couple of points.
  First of all, Senator Feingold and I have been in opposition. We were 
part of an agreement this nomination would come to the floor, but that 
has to do also with the ability to get a number of judges considered. 
We certainly need to start voting on judges.
  I do not believe, I say to my colleagues, that these votes are 
independent of one another. I do not think colleagues ought to be 
voting for Brad Smith, the argument being that only if he is so 
confirmed will judges pass. I do not believe that is part of any formal 
agreement, and it should not be a part of any informal agreement. We 
ought to vote on these candidates on the basis of their qualifications. 
We ought to be voting on them on the basis of what it is we ask them to 
do in Government.
  While I respect Brad Smith's intellectual ability and while I like 
him as a person--and I am not just saying that--I believe it would be a 
terrible mistake for the Senate to confirm him. It sends a terrible 
message of our viewpoint of the mix of money in politics and whether or 
not we are serious about any reform.
  In many ways, this is the core problem--the mix of money in politics. 
I believe we have moved dangerously close to a system of democracy for 
the few. Money has hijacked politics in this country. It is no wonder 
we see a decline in the participation of people in public life and 
politics. Most people believe money dominates politics, and it does.
  I am in disagreement with Brad Smith. Money--other Senators can come 
to the floor and disagree and debate--determines all too often who gets 
to run. All too often it determines who wins the election or who loses 
the election. All too often it determines what issues we even put on 
the table and consider. All too often it determines the outcome of 
specific votes on amendments or bills. All too often on a lot of the 
details of legislation, special interests are able to get their way. 
All too often it is on the basis of some people, some organizations, 
some groups having way too much wealth and power and the majority of 
the people left out.
  It is incredible to me. We have all become so used to this system 
that we have forgotten the ways in which it can be so corrupting, not 
in terms of individual Senators doing wrong because someone offers them 
a contribution and, therefore, a Senator votes

[[Page S4267]]

this way or that way. I do not think that happens. I hope it does not 
happen. I pray it does not happen.
  I will say this. We have the worst kind of corruption of all. It is 
systemic, and it is an imbalance between those people who have all the 
financial resources and the majority of people in the country who do 
not. It is when too few of those people have way too much of the power 
and the majority of the people feel left out. When that happens, there 
is such an imbalance of access, influence, say, and power in the 
country that the basic standard in a democracy that each person should 
count as one, and no more than one, is seriously violated.
  It is interesting, I point out for colleagues, in the first half of 
1999, just looking at the contributions, only 4 out of every 10,000 
Americans, .03 percent, made a contribution greater than $200. As of 
June 30, 1999, .022 percent of all Americans had given $1,000 to a 
Presidential candidate. In the 1998 election, .06 percent of all 
Americans gave $1,000, and that was 1 in 5,000.
  This does not even take into account all the soft money 
contributions. This does not take into account the $500,000 and the $1 
million contributions. What happens is that the vast majority of people 
in the country--I am sorry, not just poor people who do not have 
financial resources--the vast majority of people in the United States 
of America believe their concerns--for themselves, their families, and 
their communities--are of little concern in the corridors of power in 
Washington, DC, where they see a political system and a politics 
dominated by big money and, therefore, really believe they are shut 
out. We have given them entirely too much justification for that point 
of view.
  I do not see how in the world we can vote for Brad Smith, given how 
clear he is in his opposition to reform. Given the positions he has 
taken which go in the exact opposite direction of believing that money 
in any way, shape, or form can be corrupting of this political system 
and corrupting of democracy, we send a terrible message to people in 
this country if we vote for this nominee.
  Again, I am not all that excited about coming here and making these 
arguments, especially when it is about an individual person. I am not 
talking about Brad Smith; I am talking about his viewpoint. I think he 
is wrong. I would love to be in a debate with him. I probably would 
have a tough time in a debate with him. He has a tremendous amount of 
ability. It would be a fun debate. I would enjoy it.
  The point is, you can respect someone; you can say you would love to 
debate somebody; you appreciate their writing; you appreciate the 
speech they have given; you appreciate the lecture they have given--I 
was a college professor--but to see them on the Federal Election 
Commission is a different story when he is asked to implement the very 
laws he says he does not believe in, when he is asked to be there to 
make decisions--FEC is not an empty vessel, and he certainly is not an 
empty vessel--where key decisions are going to be made about 
coordination, soft money, and a whole set of issues that are 
dramatically important to whether we have a democracy or not.
  I cannot vote for him. I believe Senators should oppose this 
nomination. I do not know what the final vote will be. Maybe there will 
be a majority vote for him, maybe there will not. His nomination is put 
forth at precisely the wrong time in the history of American politics 
in the country.
  I say that because I believe people in this country yearn for change. 
Senator McCain is on the floor. He will be speaking later. His campaign 
certainly tapped into that. His campaign brought that out in people. 
That is but one powerful example.
  People would love to have a Government they believe is their 
Government. They would love to have a Senate and a House of 
Representatives they believe belong to them. People right now--I have 
said it before in the Senate--believe that if you pay, you play, and if 
you don't pay, you don't play.
  Above and beyond this debate, I want us to get to the point where we 
make some significant change. What is at stake on this whole reform 
question is basically whether or not we will continue to have a vibrant 
representative democracy. If your standard is that each person should 
count for no more than one, we have moved so far away from that 
standard, it is frightening.
  This may be a terrible thing to say on the floor of the Senate 
because I love being a Senator. I will thank Minnesota for the rest of 
my life for giving me this chance. In many ways I think we have a 
pseudodemocracy, a minidemocracy. We have participation, we have 
government of, by and for maybe about 20 percent or less of the people.
  There are many things that need to be done which can lead to 
democratic renewal. One of them is to get serious about the ways in 
which money has come to dominate politics, the ways in which we now 
have the most severe imbalance of power we could imagine, which is 
dangerous to the very idea of representative democracy.
  I want to see us move to a clean money-clean election. I love what 
Massachusetts has done; I love what Arizona has done; I love what Maine 
has done; and I love what Vermont has done. I know other States want to 
do it. If I ever get the chance, I am going to offer a bill or an 
amendment that will say that every State should apply clean money-clean 
election campaigns not only to their State races but to Federal races, 
give the right to the States as to whether or not they want to have 
essentially a fund people can draw from--maybe everybody contributes a 
few dollars a year--which enables people to say: By God, these are our 
elections; our voice counts; no one person and no one interest is 
dominant.
  There will be the McCain-Feingold bill. I will be pushing hard for 
the clean money-clean election effort. There are other people who have 
had ideas. I want us to come out here and get serious about passing 
reform legislation. We are not there yet; I know that. I think the mode 
of power for change is going to have to come from a citizen politics; a 
citizen politics will have to be the money politics. You will have to 
have an engaged, energized, excited, empowered, determined citizen 
politics that is going to force us to pass this reform legislation.
  In the meantime, I urge colleagues not to vote for Brad Smith's 
nomination--not because he isn't a good person; he is--because of the 
basic philosophy he holds, the basic viewpoint he holds which is so 
antithetical to reform. I think this is a test case as to whether or 
not we are serious about the business of reform. I hope we vote no.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Crapo). The Senator from Arizona.
  Mr. McCAIN. Mr. President, I rise in opposition to the nomination of 
Mr. Smith to the Federal Election Commission. I intend no personal 
aspersions toward Mr. Smith, and I am sure he is a fine man. However, 
he should not serve in the position to which he has been nominated. 
Sending Brad Smith to the FEC is akin to confirming a conscientious 
objector to be Secretary of Defense.
  It would be well to put the debate we are having today and for a 
short period tomorrow in the context of what is going on as we speak. 
Tuesday, May 23, from an LA Times article, ``Democratic Fund-Raising 
King Has 26 Million Reasons to Gloat''.

       Brash, unapologetic Terry McAuliffe helps party raise 
     ``greatest amount of money ever.'' Critics decry ``political 
     extortion.''
       Even on an average day, Terry McAuliffe is exuberant. But 
     these days, the Democrats' fund-raising master can barely 
     contain himself.
       After six weeks of making 200 telephone calls a day, 
     attending happy-hour rallies with small time fund-raisers and 
     wooing new high-dollar givers at intimate dinners, McAuliffe 
     is on track to raise $26 million at a blue-jeans-and-barbecue 
     event at a downtown sports arena Wednesday night--``the 
     greatest amount of money ever in the history of American 
     politics.''
       Then, turning to leave for another dinner where he would 
     woo a likely big-money contributor, McAuliffe added: ``Get 
     those checkbooks out!''
       Although a $100,000 contribution was a benchmark in the 
     last presidential election, this time around fund-raisers are 
     collecting scores of checks for $250,000 and more from those 
     who want to qualify as political players.
       For Wednesday night's event at Washington's MCI Center, no 
     fewer than 25 people raised or donated at least $500,000, 
     McAuliffe said.
       By March, unregulated ``soft money'' donations to both 
     parties were soaring, with Democratic totals nearly matching 
     Republicans for the first time.
       Officials of both parties say that the record-setting 
     inflow reflects enthusiasm for

[[Page S4268]]

     their candidates and their platforms, but the reality is more 
     complicated.
       ``There is just raw greed on the part of the solicitors, 
     and it is corrupting,'' said Fred Wertheimer, a longtime 
     leader in the effort to reform the nation's campaign finance 
     laws.
       ``When you're dealing with $250,000 and $500,000 campaign 
     contributions you are flatly dealing with influence -buying 
     and -selling and with political extortion.''
       Faced with what many would consider a daunting task, the 
     callers appeared driven by a mix of humor, commitment, 
     swagger and chutzpah.
       ``I want to ask you a question,'' McAuliffe told one donor 
     on the phone. ``If the world blew up tomorrow would you do 
     500?'' meaning $500,000.
       ``We should have gone for RFK,'' McAuliffe bellowed, 
     referring to the 50,000-seat stadium that once housed the 
     NFL's Washington Redskins.
       But when one top DNC donor inquired about getting a second 
     table at the event, McAuliffe said, ``For 500 grand, I think 
     we could give him two tables.
       In the few in-depth conversations . . . donors seem more 
     interested in talking about pet legislative issues than 
     about the merits of the Democrats' presidential nominee, 
     Al Gore.

  Mr. President, that is the context in which we are considering the 
nomination of a man who has written extensively and spoken, not very 
persuasively, on the fact of no regulation whatsoever concerning the 
role of money in American politics. We know that the role of the FEC is 
to ``administer, seek to obtain compliance with, and formulate policy 
with respect to'' the Federal Election Campaign Act.
  The FEC has the exclusive authority with respect to civil enforcement 
of the act. Clearly, then, it is obvious that FEC Commissioners should 
be dedicated to the proposition of Federal election regulation. Each 
Commissioner must be committed to ensuring a fair and open election 
process which is not tainted by the appearance of impropriety. Each 
Commissioner must be prepared to--I emphasize--uphold the law and 
preserve its intent by prohibiting the use and proliferation of 
loopholes.
  I do not believe Mr. Smith has a philosophical commitment to 
upholding the intent of the law necessary to perform the duties of an 
FEC Commissioner. In fact, Mr. Smith has been highly critical of 
campaign reform. It is not that Mr. Smith simply disagrees with 
particular details of campaign finance reform. He disagrees with the 
basic premise that campaigns should be regulated at all--a distinctly 
and unique minority position in America--or that campaign contributions 
play any part in public cynicism of our political system.
  I read from a March 17, 1997, article that Mr. Smith wrote, published 
in the Wall Street Journal. It is entitled ``Why Campaign Finance 
Reform Never Works.'' The title says it all in terms of his philosophy. 
Apparently, Mr. Smith never heard of Theodore Roosevelt.
  I quote from his article, Mr. President:

       In fact, constitutional or not, campaign finance reform has 
     turned out to be bad policy. For most of our history, 
     campaigns were essentially unregulated, yet democracy 
     survived and flourished. However, since passage of the 
     Federal Elections Campaign Act and similar State laws, the 
     influence of special interests has grown, voter turnout has 
     fallen, and incumbents have become tougher to dislodge. . . .

  Apparently, Mr. Smith lived in some other nation during the Watergate 
scandal, when unlimited amounts of money would be carried around this 
town in valises, when corporations and companies and individuals were 
literally being extorted for money which was unaccounted for. 
Apparently, Mr. Smith missed the widespread, nationwide revulsion at 
these abuses, which brought about the campaign finance reform laws of 
1974. Apparently, Mr. Smith was not seeking public office, as I was in 
1982, when there was no such thing as soft money, where we had to go 
out and raise small amounts of money from many, many donors, where we 
had to conduct the kind of grassroots campaign to which Americans have 
grown accustomed. Perhaps Mr. Smith was not aware that, until late into 
the 1980s, campaigns were conducted in a very different fashion than 
today.
  Not recognizing any role that creative evasion of the laws has played 
in these results, Mr. Smith concludes his article by writing:

       When a law is in continual revision to close a series of 
     everchanging ``loopholes,'' it is probably the law, and not 
     the people, that is in error. The most sensible reform is a 
     simple one--

  I am quoting from Mr. Smith's article in the Wall Street Journal:

       The most sensible reform is a simple one: repeal of the 
     Federal Elections Campaign Act.

  That is a remarkable statement, a remarkable statement, from one who 
is required in his new position to enforce the very law that he wants 
repealed. Remarkable, Mr. President, remarkable.
  Is someone who advocates a total repeal of the very law he would be 
enforcing as a Commissioner the right person for this job? 
Additionally, what job, over time, does not need revision or 
reauthorization? I am pleased to be the chairman of the Commerce 
Committee. We spend a great deal of time reauthorizing agencies of 
Government. That is an important part of our duties because time and 
circumstances and technology and issues change. For Mr. Smith to 
somehow condemn a law that is as important as the Federal Election 
Campaign Act because it needs to be reviewed, revised, and renewed, is, 
of course, showing incredible ignorance of the way that Congress 
functions.
  Unfortunately, this is not an isolated example. In January 1998, Mr. 
Smith authored an article for USA Today. In that article, he said:

       The First Amendment was based on the belief that political 
     speech was too important to be regulated by the government. 
     Campaign finance laws operate on the directly contrary 
     assumption that campaigns are so important that speech must 
     be regulated. . . . The solution to the campaign finance 
     dilemma is to recognize the flawed assumptions of the 
     campaign finance reformers, dismantle the Federal Elections 
     Campaign Act, and the FEC bureaucracy, and take seriously the 
     system of campaign finance ``regulation'' that the Founding 
     Fathers wrote into the Bill of Rights: ``Congress shall make 
     no law abridging the freedom of speech.''

  Is Mr. Smith ignoring the fact that President Theodore Roosevelt led 
the fight to enact meaningful reform in 1907? Is Mr. Smith ignoring the 
fact that Republican majorities in Congress led the fight to prohibit 
union campaigns and corporate contributions to American political 
campaigns? Is Mr. Smith ignorant of the fact that the overwhelming 
majority of both Houses of Congress enacted comprehensive campaign 
finance reform in 1974? I stand proudly by Theodore Roosevelt in 
believing the 1907 reforms were valid. Mr. Smith does not.
  Apparently, Mr. Smith missed, or has not heard of, the recent 
decision of the U.S. Supreme Court which directly repudiates Mr. 
Smith's assertions. I also find it curious that a person would hold 
views that have been directly repudiated by the U.S. Supreme Court--not 
holding their views as to the validity or his commitment to them, but 
certainly it is hard for me to understand how he would hold views that 
the U.S. Supreme Court, in their appointed duties, has ruled as 
constitutional.
  In one of the comments made by the U.S. Supreme Court, in U.S. 
Supreme Court decisions, at the end of part B, the U.S. Supreme Court 
goes out of its way to even mention Mr. Smith:

       There might, of course, be need for a more extensive 
     evidentiary documentation if petitioners had made any showing 
     of their own to cast doubt on the apparent implications of 
     Buckley's evidence and the record here, but the closest 
     respondents come to challenging these conclusions is their 
     invocation of academic studies said to indicate that large 
     contributions to public officials or candidates do not 
     actually result in changes in candidate's positions. Brief 
     for Respondents Shrink Missouri Government PAC; Smith, Money 
     Talks: Speech, Corruption, Equality, and Campaign Finance; 
     Smith, Faulty Assumptions and Undemocratic Consequences of 
     Campaign Finance Reform. Other studies, however, point the 
     other way.

  Obviously, the U.S. Supreme Court did not agree with Mr. Smith's 
conclusions. If Mr. Smith were intellectually honest, he would note in 
his next upholding of his view that his view has been directly 
repudiated by the U.S. Supreme Court.
  Another example. In light of Senator Thompson's investigation in the 
1996 finance scandal, the unfettered buying and selling of influence, 
which the Clinton-Gore campaign practiced, such as overnight stays at 
the White House, selling seats on foreign trade missions, and receiving 
money from foreign governments, what Mr. Smith wrote in USA Today on 
July 8, 1997, was this:


[[Page S4269]]


       Campaign reform is not about good government. It's about 
     silencing people whose views are inconvenient to those with 
     power. . . . The real campaign-finance scandal has little to 
     do with Senator Fred Thompson's investigation. The real 
     scandal is the brazen effort of reformers to silence the 
     American people.

  I have been around here a lot of years. An allegation of that nature, 
even though I have been here for some period of time, I find very 
offensive. I repeat what Mr. Smith said:

       The real scandal is the brazen effort of reformers to 
     silence the American people.

  I think the record is clear of not only my advocacy but my service to 
this Nation on behalf of free speech, and certainly to argue that those 
of us who have a different opinion than Mr. Smith are conducting a 
brazen effort to silence the American people is obviously something 
that not only do I find offensive, but something that I find 
disqualifying in Mr. Smith.
  It is clear that Mr. Smith believes there is no such thing as 
appropriate campaign finance reform. He believes that all campaign 
contributions, spending, and influence peddling are protected without 
limitation. He has advocated time and again the repeal of the very law 
he would be sworn to uphold and enforce. How can we seriously consider 
confirming his nomination to serve as a Commissioner?
  I would like to say a word about his really inappropriate remarks 
about Senator Fred Thompson's advice. Senator Fred Thompson's 
investigation got into some very serious issues, such as breach of 
national security, such as foreign influence peddling, such as 
unlimited amounts of money coming in from foreign nations to influence 
our political process. Whether most Americans believe Senator 
Thompson's conclusions were correct, I think they certainly agreed it 
was an appropriate action. In fact, it was agreed to by both 
Republicans and Democrats that Senator Thompson's investigative 
hearings take place.
  Mr. Smith says, ``The real scandal is the brazen effort of reformers 
to silence the American people.'' That is a remarkable statement among 
many remarkable statements Mr. Smith has made.
  Others are equally concerned about Mr. Smith's suitability to serve 
on the FEC. The Brennan Center for Justice at the New York University 
School of Law has this to say. This is the Brennan Center for Justice 
at the New York University School of Law:

       Imagine the President nominating an Attorney General who 
     believes that most of our criminal laws are `profoundly 
     undemocratic' and unconstitutional. Or an SEC Commissioner 
     who has publicly called for the repeal of all securities laws 
     with the plea, `We should deregulate and just let it go.' Or 
     a nominee for EPA Administrator who believes that the agency 
     he aspires to head and `its various state counterparts' 
     should be abolished. It would be unthinkable. In a society 
     rooted in the rule of law, we would never tolerate the 
     appointment of a law enforcement officer who has vocally and 
     repeatedly denounced the very laws he would be called upon to 
     enforce, much less one who has called for the repeal of those 
     laws and the abolition of the very agency he aspires to head.
       `Unthinkable. Yet, President Clinton, at the urging of 
     Senator Lott and Senator McConnell, has nominated Bradley A. 
     Smith to fill one of the vacancies on the Federal Election 
     Commission. Brad Smith, a law professor at Capital University 
     Law School, has devoted his career to denouncing the FEC and 
     the laws it is entrusted to enforce in precisely those 
     strident terms. He believes that virtually the entire body of 
     the nation's campaign finance law is fundamentally flawed and 
     unworkable-indeed, unconstitutional. He has forcefully 
     advocated deregulation of the system. And if the James Watt 
     of campaign finance had his way, the FEC and its state 
     counterparts, would do little more than serve as a file 
     drawer for disclosure reports . . .
       Brad Smith's sponsors and supporters are floating the myth 
     that it is campaign finance reformers, rather than Smith, who 
     are the radicals on these issues. However, the Supreme Court 
     only last month in Shrink Missouri cited two of Smith's 
     academic articles by name in its opinion and then repudiated 
     his view that there is no danger of corruption or the 
     appearance of corruption from large campaign contributions. 
     However, we do not need the U.S. Supreme Court to tell us 
     that Brad Smith is a radical, who is out of step with the 
     mainstream. In his own words, when he was approached about 
     serving on the FEC, Smith stated: `My first thought was 
     ``they've got to be just looking at me put my name on the 
     list so that whoever they really want will look less 
     radical.'' Even Smith did not believe, at first, that the 
     Republicans would seriously put forward his name for this 
     position because his views are so extreme. . .
       Brad Smith and his supporters have asserted that, although 
     Smith personally disagrees with much of the law, he can 
     nevertheless be counted on to faithfully enforce it. One is 
     forced to ask, however, why an academic who has made his 
     career by criticizing the nation's election laws would want 
     the job of stoically enforcing those laws? The answer, of 
     course, is that Brad Smith recognizes that federal election 
     law, like any complex regulatory regime, is open to 
     interpretation and it is the process of interpretation that 
     gives the law its meaning. Brad Smith's goal, whenever there 
     is any room for interpretation, will doubtless be to allow 
     federal campaign finance law to whither on the vine. And any 
     member of Congress that supports additional campaign finance 
     regulations--such as McCain-Feingold or Shays-Meehan, should 
     be very troubled by the prospect that the rules and 
     regulations governing their implementation might be drafted 
     by such an arch-nemesis of those reforms.

  I think there are a couple of additional points to be made here. One 
is, how can the President of the United States be committed to finance 
reform and submit Mr. Smith's name? That nominating process comes from 
the President of the United States. The next time you hear the 
President of the United States reiterate his commitment to meaningful 
campaign finance reform, remember the type of person who was nominated 
by the President of the United States for this position.
  In deference to the President of the United States, we have a little 
unwritten rule that the President gets to appoint some and the 
majority--in this case, the Republicans--appoint others. The President 
still had the ability and the authority to reject this most extreme 
nominee for any position that I have seen in my years here since 1987.
  There is another point that I think is important. Why would someone 
who disagrees with campaign finance laws, who believes they should be 
scrapped, and who believes fundamentally they are unconstitutional--not 
just the personal dislike but a firmly held tenet that all campaign 
finance laws should be scrapped and are unconstitutional--how in the 
world could you then expect someone to face a fundamental contradiction 
of their basic beliefs that a law is unconstitutional and yet seek the 
position where his sole duties are to enforce those laws? How Mr. Smith 
could even take an oath to uphold the same laws of which he has time 
and again rejected and advocated their repeal is a mystery.
  What does that say? Either he is willing and able to cast aside 
lifelong beliefs and principles in order to hold a prestigious position 
or he is less than sincere in undertaking enforcement of campaign 
reforms or enforcing existing law.
  President Reagan once said no to a Democrat whose name was submitted. 
President Clinton could have done the same. I say, shame on you, Mr. 
President, for not rejecting this name.
  Let me be perfectly clear that I do not oppose Mr. Smith simply 
because he disagrees with my proposed legislation. Many of my closest 
friends take issue with aspects of McCain-Feingold. I respect the 
opinion of others, and I respect the right of Mr. Smith to hold a view 
contrary to mine. It is because he objects to any form of campaign 
finance regulation that I oppose him.
  If you took a poll of the 100 Members of this body, I don't think you 
would find more than perhaps 1 who would hold the view that Mr. Smith 
does. My friends on both sides of the aisle at least say we need some 
form of campaign finance reform. Most are offended by this latest 
loophole called 527. Most find it egregious that we now have $500,000 
contributors. Most of them believe the money chase has lurched out of 
control to the point where, by actual acts of commission and omission, 
young Americans have become cynical and alienated from the political 
process. The 1996 election had the lowest voter turnout of 18- to 26-
year-olds than at any time in the history of this country.
  There was recently a poll taken by the Pugh Research Center--which I 
will submit for the Record at a later time--which showed that 67 
percent of young Americans say they are disconnected from government. 
And the reason given is the influence of special interests and big 
money in Washington. The system cries out for reform, if not for 
McCain-Feingold, then some other vision of reform.

  Mr. Smith believes campaign finance reform is not about good 
government.

[[Page S4270]]

It is about silencing people whose views are inconvenient to those with 
power. The real scandal, Mr. Smith says, is the brazen effort of 
reformers to silence the American people.
  A statement such as this impugns the motives of many millions of good 
and decent Americans who believe this reform is necessary in a 
remarkable way. I do not impugn the motives of Mr. Smith. I disagree 
with him. I do not believe Mr. Smith is trying to silence the American 
people. I do believe he is wrong in his positions and he is wrong for 
this job.
  It is because he objects to any form of campaign regulation that I 
oppose him, because he can acknowledge all the examples of campaign 
abuse witnesses in the 1996 election, as he did in an article published 
by the American Jewish Committee in December 1997, and still he 
contends that the only reform necessary is deregulation. So those kinds 
of abuses become the norm.
  In that article he cited the many unsavory examples of fundraising by 
the Clinton-Gore campaign. He goes on to say:

       Yet, we now see, on videotape and in White House photos, 
     shots of the President of the United States meeting with arms 
     merchants and drug dealers; we learn of money being laundered 
     through Buddhist nuns and Indonesian gardeners; we read that 
     the acquaintance of the President are fleeing the country or 
     threatening to assert Fifth Amendment privileges to avoid 
     testifying before Congress. . . .

  What troubles me most abut Mr. Smith is that, after acknowledging all 
of these incidents, he concludes that since campaign reform has not 
eliminated those abuses, we should simply give up and allow a free for 
all. That's like saying, ``Since the laws against murder haven't 
eliminated murders, we should simply legalize murders.'' Or, ``Since 
the country's drug laws haven't been enforced sufficiently to eliminate 
illegal drug deals, we should simply legalize drug use.''
  Is someone with that kind of attitude the right person for the job? I 
don't think so, and I cannot believe that my colleagues can in good 
faith and with a straight face assert that he is.
  It should be a grave concern to my colleagues that Brad Smith 
concedes all of the facts of the 1966 campaign scandal, but apparently 
sees nothing wrong with perpetuating and legalizing those wrongs. I do 
not believe the American public concurs.
  Mr. Smith advocates anything goes in election campaigns and says no 
tactic is too unseemly, too corrupt to be protected by the first 
amendment of the Constitution. By the way, I believe it was Justice 
Stevens who said in his opinion in the Shrink Missouri decision that 
money is property, money is not free speech.
  I do not agree that our Founding Fathers could have intended such a 
result any more than prosecuting someone yelling ``fire'' in a crowded 
theater. The Supreme Court has concurred in the recent Shrink Missouri 
decision in upholding the State of Missouri's campaign contribution 
limits. The Court reiterated its determination from their earlier 
Buckley v. Valeo decision that the prevention of corruption and the 
appearance of corruption is a constitutionally sufficient justification 
for limiting contributions as a form of speech.
  Mr. Smith's position is in direct contradiction to what the U.S. 
Supreme Court stated in Shrink Missouri. I repeat, the U.S. Supreme 
Court said the prevention of corruption and the appearance of 
corruption is a constitutionally sufficient justification for limiting 
contributions as a form of speech.

       In speaking of ``improper influence'' and ``opportunities 
     for abuse'' in addition to ``quid pro quo'' arrangements, we 
     recognized a concern not confined to bribery of public 
     officials, but extending to the broader threat from 
     politicians too compliant with the wishes of large 
     contributors. These were the obvious points behind our 
     recognition that the Congress could constitutionally address 
     the power of money ``to influence governmental action'' in 
     ways less ``blatant and specific'' than bribery.

  As Justice Stevens said in his concurring opinion in the Shrink case, 
responding to the arguments raised by Justice Kennedy in his dissent:

       Justice Kennedy suggests that the misuse of soft money 
     tolerated by this Court's misguided decision in Colorado 
     Republican Federal Campaign Committee v. Federal Election 
     Commission, demonstrates the need for a fresh examination of 
     the constitutional issues raised by Congress' enactment of 
     the Federal Election Campaign Acts of 1971 and 1974 and this 
     Court's resolution of those issues in Buckley v. Valeo. In 
     response to his call for a new beginning, therefore, I make 
     one simple point. Money is property; it is not speech.
       Speech has the power to inspire volunteers to perform a 
     multitude of tasks on a campaign trail, on a battleground, or 
     even on a football field. Money, meanwhile, has the power to 
     pay hired laborers to perform the same tasks. It does not 
     follow, however, that the First Amendment provides the same 
     measure of protection to the use of money to accomplish such 
     goals as it provides to the use of ideas to achieve the same 
     results.

  I find it incredible that a law professor speaking on the topic of 
constitutionality of campaign finance reform would not cite the most 
recent Supreme Court ruling and opinion pertinent to the topic. Yet, 
notwithstanding the fact that the Supreme Court issued its ruling in 
the Shrink case in January of this year, in Mr. Smith's testimony 
during his confirmation hearing before the Senate Rules Committee in 
March offered no recognition that the Supreme Court had most recently 
upheld campaign contribution limitations. He made no attempt to 
renounce his earlier writings or opinions based upon the opinion. He 
made no acknowledgment that the Supreme Court had recently reached a 
conclusion as to the constitutionality of contribution limitations at 
odds with his views. Instead, he focused his presentation on the 
uncertainty of the law, and in particular the confusion surrounding the 
Buckley opinion. This, even though the Supreme Court had in Shrink 
reiterated and clarified the state of the law. Perhaps it was because 
he had not read the Shrink opinion, a disturbing omission for a law 
school professor--or perhaps simply because he disagrees with it. In 
either case, I find the omission troubling and indicative of why Mr. 
Smith would be unsuitable as an FEC Commissioner.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                                 Common Cause,

                                    Washington, DC, March 8, 2000.
     Hon. Mitch McConnell,
     Hon. Christopher Dodd,
     Senate Committee on Rules, U.S. Senate, Washington, DC.
       Dear Chairman McConnell and Senator Dodd: While Common 
     Cause believes the Committee and the Senate would have been 
     better served with full and open hearings regarding the 
     nomination of Bradley A. Smith to be commissioner to the 
     Federal Election Committee (FEC), I request that this letter 
     be made part of the record.
       Common Cause strongly urges the Committee to reject the 
     nomination of Bradley A. Smith, Professor of Law at Capital 
     University in Ohio, to serve on the Federal Election 
     Commission. Mr. Smith has written extensively about the need 
     to deregulate the campaign finance system, has stated that 
     the FEC should be abolished, and has written that the Federal 
     Election Campaign Act (FECA) is unconstitutional. Clearly, as 
     someone who strongly opposes the law he would be duty-bound 
     to uphold and administer impartially, Mr. Smith should not be 
     confirmed.
       The FEC was created for the sole purpose of upholding and 
     enforcing the FECA. Mr. Smith, however, strongly believes 
     that the Act should be repealed. In a 1997 op-ed published in 
     The Wall Street Journal, Smith stated: ``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.''
       Elimination of FECA would repeal, among other provisions, 
     the ban on corporate and labor union contributions to federal 
     candidates, the limits on individual and PAC contributions to 
     federal candidates, the ban on foreign contributions to 
     federal candidates, the ban on cash contributions of more 
     than $100 to federal candidates, and the prohibition on 
     federal officeholders converting campaign contributions to 
     personal use.
       In short, repeal of the Federal Election Campaign Act would 
     return this country to the days before Watergate when 
     hundreds of thousands of dollars in cash were being given 
     directly to candidates from undisclosed wealthy contributors.
       Any member of a federal regulatory agency should, at a 
     minimum, believe in the mission of that agency, and the 
     constitutionality of those laws. Not only does Mr. Smith 
     demonstrate utter contempt for the agency, he also 
     demonstrates his comprehensive hostility to the federal 
     campaign finance laws--laws which he believes are wrong, 
     burdensome, and unconstitutional.
       Mr. Smith is on record stating that federal campaign 
     finance laws are, in their entirety, unconstitutional. He has 
     written that ``FECA and its various state counterparts are 
     profoundly undemocratic and profoundly at odds with the First 
     Amendment.''
       Smith also wrote: ``The solution is to recognize the flawed 
     assumptions of the campaign finance reformers, dismantle FECA

[[Page S4271]]

     and the FEC bureaucracy, and take seriously the system of 
     campaign finance regulation that the Founders wrote into the 
     Bill of Rights: `Congress shall make no law . . . abridging 
     the freedom of speech.' ''
       Any individual who believes that an agency's organic 
     statute is unconstitutional and should be repealed in toto, 
     is not fit to serve as a Commissioner of the agency charged 
     with administering and enforcing that statute.
       No one, for example, would conceive of appointing to head 
     the Drug Enforcement Agency an individual who believes all 
     federal anti-drug laws are unconstitutional and should be 
     repealed. Such an appointment would be viewed as an act of 
     utter disdain and disrespect for the laws to be administered 
     by the agency involved.
       Mr. Smith believes the federal campaign finance laws are 
     not only unconstitutional, but misguided in their very 
     purpose. In supporting repeal of the campaign finance laws, 
     he has written that the country ``would best be served by 
     deregulating the electoral process.''
       Mr. Smith's ideas are not simply a matter of whether one 
     takes a liberal or conservative view of the existing campaign 
     finance laws. What is at stake here is whether the law will 
     be administered and enforced to its full extent. While Mr. 
     Smith's ideas may be appropriate for an academic 
     participating in public debate, they are wholly unacceptable 
     for a Commissioner charged with administering and enforcing 
     the nation's anti-corruption laws enacted by Congress and 
     upheld by the Supreme Court. The purpose of the FEC is not to 
     be a debating society. The role of a FEC Commissioner is not 
     to be an advocate.
       Indeed, Mr. Smith fails even to accept the fundamental 
     anti-corruption rationale for the campaign finance laws--the 
     rationale that was at the very heart of the Supreme Court's 
     decision in Buckley v. Valeo, upholding the constitutionality 
     of the existing campaign finance laws, and which was 
     reaffirmed this year by the Supreme Court in Nixon v. Shrink 
     Missouri Government PAC. In that case, Justice David Souter, 
     writing for the majority, stated ``There 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.''
       Mr. Smith dismisses the rationale by writing that ``money's 
     alleged corrupting effects are far from proven . . . that 
     portion of Buckley that relies on the anti-corruption 
     rationale is itself the weakest portion of the Buckley 
     opinion--both in its doctrinal foundations and in its 
     empirical ramifications.''
       The FECA requires the members of the Federal Election 
     Commission shall be chosen ``on the basis of their 
     experience, integrity, impartiality, and good judgment.'' 2 
     U.S.C. 437c(a)(3). While we believe President Clinton would 
     have been within precedent to reject the recommendation from 
     Senate Majority Leader Trent Lott (R-MS) of Mr. Smith's 
     nomination (President Reagan rejected a proposed FEC nominee 
     in 1985), the Committee now has the responsibility to judge 
     whether Mr. Smith meets these criteria.
       Mr. Smith is in no way ``impartial'' about the campaign 
     finance laws. He simply does not believe in them.
       Mr. Smith's extreme opposition to the existence of the 
     federal campaign finance laws, and his clearly stated views 
     that they are unconstitutional, make him unfit to serve as a 
     Commissioner of the FEC.
       Common Cause strongly urges the Committee to vote against 
     Mr. Smith's nomination. A vote to confirm Mr. Smith is a vote 
     against campaign finance reform.
           Sincerely,
                                                Scott Harshbarger,
     President.
                                  ____


                       The Wrong Man for the Job

             (By Fred Wertheimer, President, Democracy 21)

       Would an individual who believes the nation's drug laws 
     should be repealed and are unconstitutional be appointed to 
     head the Drug Enforcement Agency?
       No way.
       Would the United States Senate confirm an individual with 
     these views to be the nation's chief drug law enforcement 
     official?
       Absolutely not.
       Then, what in the world is Bradley Smith's name doing 
     pending before the Senate for confirmation to serve as a 
     Commissioner on the Federal Election Commission (FEC)?
       Mr. Smith--who has stated that the nation's campaign 
     finance laws should be repealed and are unconstitutional--was 
     nominated by President Clinton earlier this month to serve on 
     the FEC, the agency responsible for enforcing the nation's 
     campaign finance laws.
       That's the same President Clinton who is a self-proclaimed 
     supporter of campaign finance laws and campaign finance 
     reform.
       The Smith nomination was dictated by Senate Republican 
     Majority Leader Trent Lott and Senator Mitch McConnell, the 
     leading Senate defenders of the corrupt campaign finance 
     status quo in Washington, and Smith's two leading advocates 
     for the Commission job.
       President Clinton lamely explained his nomination of Smith, 
     a strong opponent of federal campaign finance laws, on the 
     grounds that he was just following custom in ceding to the 
     other major party the ability to name three of the six FEC 
     Commissioners. In fact, however, when the Republicans held 
     the White House, President Reagan had no problem rejecting 
     the appointment of an FEC nominee of the Democrats that he 
     found to be objectionable.
       So what are the potential consequences of Clinton's 
     campaign finance betrayal if the Senate confirms Smith to 
     serve on the Commission?
       Here is what Bradley Smith has said about the nation's 
     campaign finance laws: ``[T]he most sensible reform is a 
     simple one: repeal of the Federal Election Campaign Act 
     (FECA).''
       And, here is what Mr. Smith's ``reform'' would accomplish: 
     repeal of the ban on corporate contributions to federal 
     candidates; repeal of the ban on labor union contributions to 
     federal candidates, and repeal of the limits on contributions 
     from individuals and PACs to federal candidates.
       Mr. Smith's ``reform'' also would repeal the system for 
     financing our presidential elections, the ban on 
     officeholders and candidates pocketing campaign contributions 
     for their personal use, the ban on cash contributions of more 
     than $100, and various other provisions enacted to protect 
     the integrity of our democracy.
       Mr. Smith also has stated that the federal campaign finance 
     law, known as the FECA, is ``profoundly undemocratic and 
     profoundly at odds with the First Amendment.''
       Mr. Smith's position that the FECA, and its contribution 
     limits, are unconstitutional, however, is directly 
     contradicted by numerous Supreme Court decisions.
       Just last month, for example, the Supreme Court reaffirmed 
     in Nixon v. Shrink Missouri Government PAC that contribution 
     limits are constitutional.
       The Court cited ``the prevention of corruption and the 
     appearance of corruption'' as the rationale for upholding 
     contribution limits, a rationale that Smith firmly rejects.
       Justice Souter, writing for six of the nine Justices 
     including Chief Justice Rehoquist, stated, ``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.''
       Mr. Smith, it goes without saying, is entitled to hold and 
     express whatever views and philosophy he may have about 
     campaign finance laws.
       It should also go without saying, however, that the 
     American people are entitled to have law enforcement 
     officials who believe in the validity and constitutionality 
     of the laws they are charged to enforce, and who do not view 
     these laws with total disdain and hostility.
       As The Washington Post noted in an editorial, Smith's 
     premises ``are contrary to the founding premises of the 
     commission on which he would serve. He simply does not 
     believe in the federal election law.''
       And, The New York Times wrote in an editorial that Smith's 
     stated positions ``make plain that his agenda as a commission 
     member would be a further dismantling of reasonable campaign 
     limits intended to curb the corrupting influence of big money 
     rather than serious enforcement of current campaign finance 
     laws.''
       Mr. Smith's nomination is a classic symbol of the breakdown 
     in law enforcement that has occurred when it comes to the 
     nation's campaign finance laws. Mr. Smith's confirmation to 
     be an FEC Commissioner would be an insult to the American 
     people.
       United States Senators should not allow this to happen.

  Mr. McCAIN. Mr. President, I see my friend and comrade in arms, 
Senator Feingold. Let me mention what is going on not only as far as 
the fundraiser is concerned, but recently we received information there 
will be a hearing tomorrow before the Senate Judiciary subcommittee and 
on Thursday before the House Government Reform Committee.

       According to a December 9, 1996, memo by FBI Director Louis 
     J. Freeh, Mr. Radek [head of Justice Office of Public 
     Integrity] told Mr. Esposito [who was a deputy director of 
     the FBI] he was ``under a lot of pressure not to go forward 
     with the investigation,'' and that Ms. Reno's job ``might 
     hang in the balance.'' The memo said Mr. Freeh met with Ms. 
     Reno and personally suggested she and Mr. Radek recuse 
     themselves from the probe.

  What we are talking about here is a situation that, if campaign 
finance laws had been obeyed and enforced, we would not be subjected to 
as a nation; that is, disturbing allegations that information was 
brought by the FBI, the Director of the FBI, Mr. Louis Freeh, and by 
Mr. Charles LaBella, who was appointed as the head of the task force to 
investigate these very allegations by the Attorney General herself--
those recommendations were ignored by the Attorney General. The 
recommendation for the appointment of an independent counsel was 
ignored by the Attorney General of the United States. A recommendation 
by Mr. Freeh was not accepted by the Attorney General of the United 
States and, according to the Deputy Director of the FBI, Mr. Radek, 
whose office is described as the Office

[[Page S4272]]

of Public Integrity in the Justice Department, he said he was ``under a 
lot of pressure not to go forward with the investigation''--I wonder 
who from--and that Ms. Reno's job ``might hang in the balance.''
  This is the pernicious effect of a campaign finance system which has 
run amok. That is not confined to the Democratic Party. There have been 
abuses on my side as well because this system knows no party 
identification. This system knows only the increasing avariciousness of 
a system that has run amok.
  We are now about to confirm as one of those whose appointment is to 
enforce the law someone who is adamantly opposed to the law, believes 
the law is unconstitutional. And we are in a situation in America today 
that, in the view of more objective observers than I, can only be 
compared to the turn of the century when the robber barons of this 
Nation, through huge input of contributions to political campaigns, had 
basically bought the American Congress. Thanks to the brave and 
courageous efforts of one Theodore Roosevelt, joined by millions of 
other like-minded reformers, we brought an end to that corruption.

  Now we are about to appoint to that body an individual who will not 
only not be opposed, who will not only not support trying to clean up 
this system, but will try to remove the last vestiges of campaign 
finance reform law as it exists today. All I can say is it is a 5-year 
appointment. He will not be there forever. We will have campaign 
finance reform.
  As my colleagues know, I recently completed an unsuccessful campaign 
for the nomination of my party for the Presidency of the United States. 
It was one of the most rewarding and uplifting experiences of my life. 
I learned many things during that campaign. I will not clutter the 
Record with the lessons I learned.
  When I began the campaign, I said the theme of my campaign would be 
reform. Every political pundit said there was no room for reform in the 
political agenda. In hundreds of townhall meetings and thousands of 
speeches, I said: Campaign finance reform is the linchpin; if we want 
to reform education, if we want to reform the military, if we want to 
reform the Tax Code, if we want to reform the institutions of 
government, we must get this Government out of the hands of the special 
interests and back to the people. I believe that message resonated then 
and resonates to this day.
  We are about to appoint an individual now in complete contradiction 
to what I believe is strongly the will of the people, not only that 
existing laws be enforced but new laws be enacted in order to close the 
loopholes that have been created since the passage of the 1974 law.
  We, in our wisdom, are about to appoint an individual who flies in 
the face of everything I learned in my campaign, despite a clear voice 
from the American people, particularly from our young, particularly 
from our young citizens to whom, sooner rather than later, we will pass 
the torch of leadership of this Nation, who have become cynical and 
even alienated from the political process--not without good reason.
  Mr. President, I note the presence of the Senator from Vermont. I 
might say to the Senator from Vermont, I had a wonderful day in his 
State long ago, where he is well respected and well loved by the 
citizens of his State. I appreciate the opportunity, always, to be in 
lovely Montpelier. I thank him and his fellow citizens for all their 
hospitality.
  The PRESIDING OFFICER. The Senator from Vermont.
  Mr. LEAHY. Mr. President, I ask unanimous consent I be allowed to 
take 7 minutes of the 15 minutes that is reserved to the Senator from 
Vermont on the Timothy Dyk nomination.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. McCAIN. Mr. President, I reserve the remainder of my time.
  Mr. LEAHY. Mr. President, while the Senator from Arizona is still on 
the floor, I was going to say at the beginning of my remarks, the 
Vermont press showed very clearly how well respected the Senator from 
Arizona is in Vermont and how well received he was. He was one of the 
biggest vote getters our State has ever had. He did an extremely good 
job. He won his party's primary overwhelmingly. In Vermont his victory 
was declared within, I think, 5 minutes after the polls closed on 
primary day because the number was so overwhelming.
  I say this because, while I was not at the convention where he spoke, 
as he can imagine--it was the Republican State convention--many of my 
dear friends and supporters were there. They told me also how much they 
respected what the Senator from Arizona said, as they had when he had 
been in Burlington earlier in his campaign and spoke to an overflow 
crowd. Montpelier is where I was born, so I always watch what happens 
there. I say to my friend from Arizona, the calls and e-mails I got 
after his appearance about him were all positive.
  Mr. McCAIN. I thank my colleague.


                      Nomination of Timothy B. Dyk

  Mr. LEAHY. Mr. President, I am pleased that the Senate is finally 
going to vote this week on the confirmation of Timothy Dyk.
  A vote on this nominee has been a long time coming. He was first 
nominated to a vacancy on the Federal Circuit Court of Appeals in April 
of 1998--over 2 years ago--by some reckonings, in the last century. He 
had a hearing. He was reported favorably by the Judiciary Committee of 
the Senate in September of 1998. His nomination was left on the Senate 
calendar that year without any action and eventually was returned to 
the President, 2 years ago as the 105th Congress adjourned.
  Then Mr. Dyk was renominated in January of 1999. He was favorably 
reported to the Senate floor, again, in October of 1999. For the last 7 
months, this nomination has been waiting on the Executive Calendar for 
Senate action.
  Let me just tell you a little bit about Timothy Dyk. He has 
distinguished himself with a long career of private practice in the 
District of Columbia. From 1964 to 1999, he worked with Wilmer, Cutler, 
and Pickering as an associate and then as a partner. Since 1990 he has 
been with Jones, Day, Reavis, and Pogue as a partner. He has been the 
chair of its issues and appeals section.
  He received his undergraduate degree in 1958 from Harvard College; 
his law degree from Harvard Law School in 1961. Following law school, 
he clerked for three U.S. Supreme Court Justices: Justices Reed and 
Burton, and Chief Justice Warren. He was also a special assistant to 
the Assistant Attorney General in the Tax Division.
  His is a distinguished career. He represented a wide array of 
clients, including the U.S. Chamber of Commerce, the National 
Association of Manufacturers, the National Association of Broadcasters, 
the National Trucking Association, and he has the support of a wide 
variety of these organizations. We have received strong letters of 
support for him. Here are some of those who sent in letters saying 
let's get this man confirmed:
  The U.S. Chamber of Commerce, the American Trucking Association, the 
National Association of Manufacturers, the National Association of 
Broadcasters, IBM, Gannett, Eastman Kodak, Brush Wellman, Rockwell, LTV 
Corporation, SkyTel Telecommunications, the Lubrizol Corporation, 
Ingersoll-Rand, the American Jewish Congress, the Anti-Defamation 
League, the American Center for Law and Justice, and Trinity 
Broadcasting Network.
  I said many times on the floor that we take far too long to confirm 
good people. We are wrong and irresponsible to hold people up basically 
on a whim until we feel like bringing up their names. Nominees deserve 
to be treated with dignity and dispatch, not delayed for 2 or 3 years. 
Of course, any Senator can vote as he or she wants, but let's 
understand the human aspect.
  When somebody has gone for their hearings, when they have been voted 
out of committee, when they are pending in the Senate, their life is on 
hold until we act. It is unfair, it is unreasonable to tell somebody in 
a law practice: The good news is the President has nominated you to the 
Court of Appeals. You will be congratulated by your partners, by your 
clients, and then they will say: When are you going to be confirmed? If 
you have to respond: When the Senate gets around to it, that is not a 
good answer. Vote somebody up or vote somebody down.

[[Page S4273]]

  This is a man who should have broad, strong bipartisan support, just 
as the letters of support show broad, strong bipartisan support.
  I am glad that Tim Dyk will be voted on for the Federal Circuit. We 
have worked long and hard to get him the vote to which he is entitled. 
I worked to have him confirmed in 1998. I worked to have him confirmed 
in 1999. I am glad that finally, he will be accorded a vote on this 
long pending nomination.
  He and his entire family have much of which to be proud. His legal 
career has been exemplary. He will make a superb judge.
  I know Timothy Dyk. I know him and his wife, both of whom have had 
long, distinguished careers in the private sector and the public 
sector. Let's give the country the opportunity to have him join the 
Federal Circuit Court of Appeals, just as we did late last year with 
his colleague, Richard Linn. It is time for the Senate to confirm 
Timothy Dyk to the Federal Circuit.
  Mr. President, not seeing anybody on the floor, I suggest the absence 
of a quorum and ask unanimous consent that it not run against the time 
of either side.
  The PRESIDING OFFICER. Without objection, it is so ordered. The clerk 
will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. SCHUMER. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. SCHUMER. Mr. President, I yield to myself as much time as I may 
consume from Senator Leahy's time on the nomination of Mr. Gerard Lynch 
to become a district court judge for the Southern District of New York.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                       Nomination of Gerard Lynch

  Mr. SCHUMER. Mr. President, I thank the majority leader and the 
minority leader for coming together on an agreement that allows for a 
number of vital votes on judicial nominees. I also thank Chairman Hatch 
for, again, tending to our judicial needs in my State and in so many 
States, and for the fairness with which he has tried to move this 
process forward.
  It is with great pride and pleasure that I rise in support of the 
nomination of Gerard Lynch to be district court judge for the Southern 
District of New York. At my recommendation, President Clinton nominated 
Professor Lynch to fill a vacant Federal judgeship in the Southern 
District.
  Professor Lynch's experiences and accomplishments as a prosecutor, as 
a private lawyer, as a professor of law, and as a public servant make 
him a superb candidate to be a Federal judge. I have never, in my days, 
seen such high recommendations from people from all parts of the 
political spectrum simply about this man's intellect and 
accomplishments.
  Professor Lynch's background and career accomplishments are, frankly, 
staggering. He was born and raised in Brooklyn, a place near and dear 
to my heart. He then attended Columbia College, where he graduated 
first in his class--a highly competitive school--followed by Columbia 
Law School, where he also was No. 1 in his class.

  After law school, he accepted two judicial clerkships-- first, with 
one of New York's great jurists, Judge Wilfred Feinberg of the Second 
Circuit, and then with Justice William Brennan on the Supreme Court. He 
was at the top of the legal profession as he went through his education 
and his clerkships. You could not have a better record.
  Since that time, he has had a multifaceted career, mostly as a 
prosecutor and professor, and that is as impressive as any judicial 
candidate I have seen in years.
  Since 1977, he has served as the Paul K. Kellner Professor of Law at 
Columbia Law School, where he teaches criminal law and criminal 
procedure, as well as constitutional law and other courses.
  He is a leading expert on the Federal racketeering laws and has 
written numerous articles on the subject. He has also published 
articles on other aspects of criminal law, constitutional theory, and 
legal ethics.
  Maybe most importantly, he is considered one of Columbia Law School's 
outstanding professors, winning a number of awards for excellence in 
teaching and serving as a guide and mentor to countless students over 
the years.
  Professor Lynch, however, has not only been a professor, he also 
spent many years as a Federal prosecutor in the Southern District of 
New York, one of the premier U.S. Attorney's Offices in the country. He 
tried numerous cases, including white collar and political corruption 
cases, and eventually rose to be the chief of the appellate division.
  In 1990, after a stint as a professor, he was asked to return to that 
office as chief of the Criminal Division under U.S. Attorney Otto 
Obermaier. In that capacity, he supervised more than 135 prosecutors 
and oversaw all of the office's criminal cases. Mr. Obermaier, a 
Republican appointee, handpicked Professor Lynch to serve as his lead 
criminal prosecutor. I know he has been outspoken in support of this 
nomination, and Mr. Obermaier was known as a hardnosed, rather 
conservative prosecutor in the Southern District.
  Professor Lynch has also served as counsel to numerous city, State, 
and Federal commissions, and has worked with a number of special 
prosecutors investigating public corruption. Moreover, from 1988 to 
1990, he served as a part-time associate counsel for the Office of 
Independent Counsel.
  More recently, Professor Lynch has been counsel to a top New York law 
firm, primarily handling white collar criminal matters and regulatory 
matters, while still maintaining a full courseload teaching at 
Columbia.
  So, intellectually, he is at the top of the list. Experience-wise, he 
has done it all. He is also a wonderful, wonderful person. He loves 
Latin and Greek and he knows them well. He loves theater, art, and 
ballet.
  Just to let my colleagues know what a fine man he is and what an 
honorable man he is, when Gerry went to Columbia College, the Vietnam 
war was waging. He came from a working-class background and he knew 
that many of his classmates in high school would be drafted. He, by 
being a college student, was not eligible for the draft, but he thought 
that was unfair. He thought it was unfair that those lucky enough to 
get into college should have special advantages over working-class 
young men being called for the front line. So he refused to pursue an 
exemption. He was not called. But that shows you the mettle of the man.

  I will close by admitting that I am very excited about the prospect 
of Professor Lynch becoming the next member of the Southern District 
bench. I know his wife and his son are proud of him, and rightfully so.
  He meets the criteria I have set for myself in choosing judges, which 
are:
  No. 1, excellence. There is no doubt;
  No. 2, moderation. I try to avoid judges who are extreme in either 
case;
  And, No. 3, diversity. While Gerard doesn't quite qualify in that, I 
think I fulfill that in some other nominations.
  Gerard Lynch has the rare combination of intelligence, practical 
experience, judicious temperament, fairness, and devotion to hard work 
that makes for truly great judges. He is just what the Founding Fathers 
and all others throughout have wanted for a Federal judge. All too many 
people of his qualification don't ask for and don't aspire to the 
bench. He does. We should take this opportunity and support him 
wholeheartedly.
  I yield to my senior colleague and friend from the State of New York, 
Senator Moynihan. Is that the proper procedure, Mr. President? Should I 
yield to Senator Moynihan, or should I yield my time?
  The PRESIDING OFFICER. Senator Moynihan is recognized in his own 
right.
  Mr. MOYNIHAN. How very generous of you, Mr. President.
  How kind of my beloved colleague and friend.
  I rise with a measure of animus, if I may do, sir, this afternoon. I 
was one of those who, with my colleague, introduced Mr. Lynch to the 
Committee on the Judiciary with such very considerable pride to have 
that opportunity.
  My colleague remarked about the founders of the Constitution. I will 
speak in just a moment about the Columbia Law School, which precedes 
the Constitution, which Constitution was written in very large measure 
by a graduate of that law school, Alexander Hamilton, and whose first 
large treatise of explanation was written by

[[Page S4274]]

Chancellor Kent, as he is known, having been chancellor of New York 
State, with his commentaries on the laws of the United States.
  It is not a small thing to become a member of that law faculty. It is 
a large honor carefully reserved for lawyers of successive generations 
who note history and demand its importance to this time.
  We have before us, sir, the nomination of a great lawyer--I use that 
carefully--who will be a superb judge.
  I think he might have been surprised--we would not have been 
surprised--that early in life and at another time he might not have 
chosen criminal law as his specialty. But he came of age in the bar 
when that was the first problem, singularly so, of the Southern 
District of New York. And he went to work at it.
  He was a serious prosecutor, sir, a successful one--a relentless one 
and a successful one. I want to say that, sir-- a successful one. None 
came into his compass charged with a crime that he did not prosecute 
fairly, rigorously, relentlessly, and, in the end, sir, with an 
extraordinary range of success--and I defer to my revered colleague--
with an extraordinary range of success.

  This is a man of whom criminals had never heard but, when they 
appeared in court with him, will never forget. This man understood that 
the principles of a free society require adherence to law with a 
reverence and respect and, if necessary, a measure of fear: Do not 
appear before this judge with the burden of guilt or you shall be found 
guilty.
  He has a range of intellectual pursuits. Ought not a member of the 
school of law that taught Alexander Hamilton and graced by Chancellor 
Kent and his great success--ought not there be such a range? Ought he 
not be able to entertain alternative ideas, examine them, and consider 
the possibilities?
  We have, sir, a wonderful symbol--I do not know in my ignorance 
whether it is from Greece or Rome--of Justice blindfolded, holding up a 
scale and weighing the evidence. He has done that in a great range of 
professional articles. He has done that in a long career of 
prosecution. And he has considered alternatives and made judgments 
because he is by nature a judge. He has been in the pits where judges 
have to make determinations from whatever is presented to them as 
evidence. And he knows the process.
  He graduated summa cum laude from Columbia Law School. He clerked for 
Judge Feinberg on the Second Circuit Court of Appeals --the Second 
Circuit, sir, the mother court, we should say--and for Justice Brennan 
on the Supreme Court. Over the past 23 years, he has won award upon 
award, including the University-wide President's Award for Outstanding 
Teaching in 1997. He is nationally known as a criminal law expert, for 
his writings, and particularly his writings on racketeering law.
  I come before the Senate to say there has not been a finer judge 
proposed by the Senate Committee on the Judiciary. We are honored to 
have him before the Senate. I prayerfully hope none of us ever appear 
before him.
  Mr. SESSIONS. Mr. President, I ask unanimous consent that I be 
allowed to use my time on two judicial nominations.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. SESSIONS. Mr. President, I have great respect for Senator 
Moynihan and Senator Schumer. I know they have great affection and 
admiration for Mr. Lynch. In no way do I question his integrity. I do 
not question his legal ability. He is certainly a scholar and a person 
of intellect.
  Except for two leaves of absence, he has been a law professor. The 
old rule must apply: The A students become professors; B students, 
judges; and C students make the money. Regardless, he has been a 
professor, worked on a few cases, and spent several years with the U.S. 
Attorney's Office prosecuting cases. By all accounts, he is a man of 
good personal character.
  The problem I have with this nomination is that I have come to 
believe from his writing that he is, indeed, a judge who is an 
activist. There is only one opportunity for the people of this country 
to confront the question as to whether or not an individual nominated 
to be a judge will obtain a lifetime appointment. That is our role 
under the Constitution, to advise and consent to nominations of the 
President. The President has nominated Mr. Lynch. I think it is our 
duty, if we are not to be a potted plant or rubber stamp his record, 
his skill, his background, his philosophy, and see if we want to 
authorize him, for the rest of his life, to preside over cases, to 
interpret the law, to interpret the Constitution, and make major 
decisions in that regard. That is our question: Do we want to do that?
  It would be bad to impose upon the people of New York or any other 
State any person who is not clearly committed to the judicial role. The 
judicial role is that a judge should require himself to follow the 
Constitution of the United States and the laws duly passed by the 
Congress of the United States. The Constitution is a contract. It was 
an instrument of agreement between the American people and the 
government when they formed it. They gave to the government certain 
limited powers. They reserved for themselves and for the States other 
powers. That is a fundamental principle.
  I think our courts in recent years have done a little better. At one 
point, they were exceedingly activist. The leader of that activism 
crusade in the Federal courts was none other than Justice Brennan for 
whom Mr. Lynch clerked. Subsequent to that, he has written in the 
Columbia Law Review on two separate occasions. The Columbia Law Review 
is a prestigious law review and the Columbia Law School is a 
prestigious law school. One does not write for the Columbia Law Review 
without giving careful thought to each and every word he utilizes in 
that law review, even more so if he is a professor at that school.
  In the course of writing these articles, Mr. Lynch made some 
statements that I think represent very serious indications of his 
philosophy and his willingness to be bound by the law and the 
Constitution as a judge. Take, for example, this 1984 article, 
``Constitutional Law as Moral Philosophy'':

       The Supreme Court, because it is free of immediate 
     political pressures of the sort that press on those who must 
     face the voters, is better placed to decide whether a 
     proposed course of action that meets short-term political 
     objectives is consistent with the fundamental moral values to 
     which our society considers itself pledged.

  That is a very risky, dangerous statement, a carefully written 
statement, words Mr. Lynch chose carefully. He says the Supreme Court, 
because it doesn't have to answer to the American people in elections, 
is better placed to decide a proposed course of action that meets 
short-term political objectives and is consistent with moral values 
which our society considers itself bound.
  Our Constitution is deeply rooted in our moral order and heritage, 
but our Constitution is a contract; our Constitution is an agreement 
with the people. It has specific ideas and requirements in it that I 
expect a judge to abide by.
  To show the danger in this philosophy, let me share the example of 
the death penalty. The eighth amendment prohibits cruel and unusual 
punishment. Justice Brennan, for whom Mr. Lynch clerked, declared that 
the death penalty was cruel and unusual and therefore it violates the 
eighth amendment to the Constitution.
  I suggest that is bizarre because at the time the Constitution was 
adopted, every State had a death penalty. There are six or more 
references within the very document itself, the Constitution, to a 
death penalty. Yet he feels it violates some sort of contemporary 
standards of morality. Justice Brennan used his lifetime appointment as 
a judge to dissent on every single death penalty case, saying it 
violates the Constitution, while the Constitution contemplates and says 
you can take life with due process in several different places.
  That is judicial activism.
  Mr. SCHUMER. Will the Senator yield? I am happy to yield to him some 
of my time.
  I ask my colleague if he was aware that Professor Lynch is for the 
death penalty. In fact, he was questioned by Senator Thurmond, on our 
committee. I will read the question for the Record:
       Do you have any personal objection to the death penalty 
     that would cause you to be reluctant to oppose or uphold the 
     death sentence?

  And Professor Lynch answered:


[[Page S4275]]


       No, Mr. Chairman.

  So I submit to my friend that, while Justice Brennan may have had a 
more broad--I tend to agree with my colleague. I am for the death 
penalty myself, but I tend to agree with my colleague on that issue. 
That is not Professor Lynch's philosophy. In fact, when one becomes a 
Clerk for the Supreme Court, high honor that it is, you are chosen 
simply on your scholastic ability, not on your ideology. I thank the 
Senator for yielding and letting me add that to the record.
  Mr. SESSIONS. Mr. President, I think Senator Schumer raises a good 
point. I never said he opposed the death penalty. What I was trying to 
point out is that judges, if they desire to impose their fundamental 
moral values on people when they don't get elected, can end up doing 
things like Justice Brennan did, for which, certainly, Mr. Lynch 
admires him.
  I have another quote I think is even more clear, a more clear 
indication of Mr. Lynch's willingness to utilize personal opinions--
justifying judges who want to use personal opinions instead of 
interpreting the law. He was talking about Justice Brennan. This was in 
1997, just a few years ago:

       Justice Brennan's belief that the Constitution must be 
     given meaning for the present seems to me a simple necessity; 
     his long and untiring labor to articulate the principles of 
     fairness, liberty, and equality found in the Constitution--

  Fairness, liberty, and equality sound a little bit like the French 
Revolution, words they used to chop off a lot of people's heads. Our 
Constitution is a document of restraint. But:

       . . . in the way that he believed made most sense today.

  Justice Brennan's belief that the Constitution must be given:

       . . . meaning for the present in the way he believed made 
     most sense today seems far more honest and honorable than the 
     pretense that the meaning of those principles can be found in 
     18th- or 19th-century dictionaries.

  In the course of my time on the Judiciary Committee, I have voted for 
well over 90 percent of the nominees, I suppose, that the President has 
submitted. This Senate has confirmed a large number of them. I suggest 
that this may be the most dramatic example of any nominee that we have 
had, that they have explicitly stated that a judge has the ability to 
ignore the meaning of the words that were put in the Constitution. In 
other words, he doesn't have to use the dictionary definition of words. 
He doesn't have to use dictionary definitions of words. He just goes to 
whatever the meaning of ``is,'' is, I suppose.
  In other words, there is no constraint on a judge who will not adhere 
to the words himself and admit that he needs to be bound by the plain 
words in a statute or our Constitution. He puts down the philosophy 
that a judge has to show restraint. Even if he did not like the 
constitutional provision, even if he or she did not like the statute 
involved, he would be bound to enforce it. It is a fundamental matter 
of great importance.
  Just as Professor VanAlstyn, speaking at a Federal court conference a 
number of years ago, said:

       It is absolutely critical that we enforce this 
     Constitution, the one that we have, the good and bad parts of 
     it.

  That is what law is all about, enforcement of law that is written. 
Without it, we do not have justice. Professor VanAlstyn says you do not 
respect the Constitution if you don't enforce its plain meaning. You 
say the Constitution is great; it is a living document. It is not; it 
is on paper. It is not living; it doesn't breathe. It is a contract 
with the people of America about how they are going to give power to 
people who govern them. It is a limited grant of power to the people 
who govern them.
  I will say this. That is another dramatic statement of a judge's 
ability, according to Mr. Lynch, to redefine meanings of words and to 
line up contemporary events, as of today, so he can impose a ruling on 
the people that he believes is just and fitting with community 
standards and moral decencies and things of that nature. That is a very 
dangerous philosophy. It is not the philosophy of the mainstream law in 
America today.
  It was advocated by and probably reached its high-water mark under 
Justice Brennan when he tried to declare the death penalty to be in 
violation of the U.S. Constitution, when the Constitution provided for 
the death penalty. That is big-time stuff, when a Justice on the 
Supreme Court is prepared to say something like that and dissented on 
every single death penalty case based on that theory.

  I suggest Mr. Lynch is a brilliant lawyer, a man of great skill, a 
lawyer/professor, and he knows what he means and he said what he meant 
when he wrote that. What else can we think? If that is so, then I 
believe we cannot be sure, Members of this Senate, that he would 
consider himself bound by the plain meaning of words, of statutes 
passed by this body or even more significant, not consider himself 
bound by the Constitution itself that was ratified by the American 
people to protect their liberties.
  Remember, when we have a judge who believes in activism, it is at its 
most fundamental an antidemocratic act. It is an act that goes against 
democracy because we have a lifetime-appointed judge whose salary 
cannot be cut so long as he lives. He can stay on that bench as long as 
he lives. He is asserting for himself or herself the right to declare 
what he or she thinks is appropriate today. ``It may not have been what 
they thought when they wrote that old Constitution, but things have 
changed today. I think today the death penalty is unconstitutional.'' 
That kind of philosophy is a danger. It disrespects the Constitution. 
It undermines the Constitution and undermines democracy.
  I wish I would be able to support Mr. Lynch. I supported the 
overwhelming majority of the nominees, some of them maybe even more 
liberal than Mr. Lynch, but I haven't had anything to indicate that or 
I would have probably opposed them. Some I have.
  This document, these law review articles are extraordinarily 
troubling to me. I do not think it is a minor point. I think it is a 
big point. I know the Senator from New York, both Senators from New 
York, think highly of Mr. Lynch and I respect that. But based on what I 
have observed, I believe his written remarks indicate he is unwilling 
to be bound by the law. Therefore we should not impose him on the 
people of New York and the United States.
  I see the Senator from New York might want to comment on that before 
I go to the next nominee? I have one more nominee I would like to 
comment on.
  Mr. SCHUMER. Yes, Mr. President.
  The PRESIDING OFFICER. The Senator from New York.
  Mr. SCHUMER. Mr. President, I thank my friend from Alabama for his 
heartfelt remarks. I understand the passion from which he comes and, 
while I do not agree with him completely, as those on my judicial panel 
will tell him, one of the things I always cross-examine them about is, 
Is this person going to go off and make their own law? Because I do not 
like that either. As I said, my three watchwords in appointing judges 
in my first year, and I think I have lived up to them with every 
nominee, are: Excellence, moderation, and diversity.
  Let me just say I think Judge Lynch is clearly a moderate and he 
clearly is not the kind of activist that my good friend from Alabama is 
saying. In fact, he has criticized Justice Brennan for being 
``activist'' in some of his interviews. Judge Posner noted the same 
about Judge lynch. Judge Posner is someone who probably agrees with the 
Senator from Alabama more than he agrees with the Senator from New 
York.
  But the two quotes there that my friend from Alabama cited are 
snippets of articles. Two paragraphs later Professor Lynch expostulates 
further and greatly narrows what he has said here. Let me read a quote 
from the first article. I think it is important the record have it for 
the edification of my good friend from Alabama.
  Admittedly, Professor Lynch is a professor. He has written a lot more 
than a lot of the other judges and, given as many writings as he has, I 
guess you could take two paragraphs and say: This man is a judicial 
activist.
  If you look at the entire warp and woof of his work, as well as what 
he actually meant even in the two paragraphs my good friend from 
Alabama has mentioned, I think the Senator is not correctly stating 
Professor Lynch's view.
  I will read a paragraph from the same article from which the previous 
quote

[[Page S4276]]

the Senator from Alabama had mentioned appears. This is what Professor 
Lynch says a few paragraphs later:

       It is the text itself that embodies and defines what has 
     been agreed on. What survived the rigorous ratification 
     process to become fundamental law, after all, was not what 
     Madison or Bingham believed in his heart, or even what they 
     said on the floor of the Convention or the House, but rather 
     what was contained in the text of the ratified provision. 
     Thus, the text is not merely evidence from which the mind of 
     the (perhaps partly mythological) lawgiver should be deduced; 
     rather, the text is the definitive expression of what was 
     legislated.

  I will repeat that again for my colleague from Alabama:

       . . . the text is the definitive expression of what was 
     legislated.

  That is hardly the writing of somebody who wants to go far, far 
afield. As I mentioned, the example my good friend from Alabama keeps 
hearkening back to is the death penalty and the way Justice Brennan 
interpreted it. If Professor Lynch agreed with that, I would say the 
Senator from Alabama had a point, but he explicitly disagrees and has 
criticized Justice Brennan as being too active.
  The second quote Senator Sessions focuses on, the quote before us on 
the chart, comes from a tribute to the memory of Justice Brennan that 
Professor Lynch, who clerked for Justice Brennan after graduating from 
law school, wrote in 1997. Again, in the context of the whole essay, 
Professor Lynch's point is noncontroversial. He is writing here about 
what a judge is to do when the broad language in the Constitution does 
not speak to a modern-day issue. We are not talking about expanding but 
interpreting the spirit of the Constitution.
  I say to my colleague from Alabama, when the fourth amendment speaks 
of unreasonable searches and seizures and says nothing about wiretaps 
of telephones or the Internet, it does not mean the judges are unable 
to interpret what search and seizure means in the context of telephones 
or wiretaps. That is all Professor Lynch is saying.
  He is saying judges must look at the text and the values underlying 
the text and interpret both in light of developments of the present. Do 
not expand what unreasonable searches and seizures are, rather 
interpret them in light of new changes in technologies, such as 
telephones. Otherwise, the Constitution--and I am sure my colleague 
from Alabama can admit this--would be largely irrelevant to today's 
legal problems.
  Moreover, Professor Lynch was asked at his nomination hearing about 
this article by Senator Thurmond. Here is what he said. His response 
was unequivocal:

       I believe, Mr. Chairman, that the starting place in 
     interpreting the Constitution is with the language of the 
     document. As with the legislation passed by the Congress, it 
     is the wording of the Constitution that was ratified by the 
     people and that constitutes the binding contract under which 
     our government is created.
       In attempting to understand that language, it is most 
     important to look to the original intent of those who wrote 
     it and the context in which it was written.

  It seems to me, and I did not realize it until I read this paragraph 
again, those are the exact words my good friend from Alabama mentioned 
as his views of what the Constitution is all about: Not some document 
that expands at the whim, wishes, or ideology of the judge but rather a 
written contract, words, black and white with the American people. 
Judge Lynch--I do not want to presume anything here, particularly in 
this Chamber--Professor Lynch makes, in fact, the same point that my 
good friend from Alabama did.

  The PRESIDING OFFICER. The time of the proponents of the nomination 
has expired.
  Mr. SCHUMER. Mr. President, I ask unanimous consent that 1 additional 
minute of Senator Leahy's time on another judge where there is not 
going to be any contest or discussion be given to me. I am not 
expanding the time.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. SCHUMER. I thank Senator Leahy in absentia for allowing me to do 
that. I hope he is not upset.
  It is certainly the prerogative of my good friend from Alabama to 
interpret snatches of text from book reviews and tributes to conclude 
that maybe Professor Lynch has a judicial philosophy with which he 
disagrees, but this is the definitive and current statement on the 
issue by the nominee, and I think it prevails.
  In conclusion, if Professor Lynch is confirmed, I believe Senator 
Sessions and I--and I have enjoyed working with him on so many issues--
will look back 5 or 10 years and both approve of the work Judge Lynch 
has done, admire his faithfulness to the words of a document we both 
regard as sacred--and I believe he does as well--the Constitution, a 
document we are all sworn to uphold. I yield back any time and thank my 
colleague for the dialog and for making us think and explore as he 
always does.
  The PRESIDING OFFICER. The Senator from Alabama.
  Mr. SESSIONS. What is the time left on the Lynch nomination?
  The PRESIDING OFFICER. The Senator from Alabama has 4 minutes.
  Mr. SESSIONS. Mr. President, I note that Mr. Lynch's words are pretty 
explicit and leave little doubt. I am pleased to see before his 
hearing--talk about a death-bed conversion. His testimony sounds 
somewhat improved over the language here, but it does concern me when 
he dismisses concepts such as actually looking at dictionaries that 
refer to the time of the people who wrote the document and review words 
to see what they actually were intended to mean.
  That is what a judge really ought to do, and Mr. Lynch dismisses that 
almost with contempt. We have to consider it awfully dangerous when a 
judge feels the principles of the Constitution of liberty, equality, 
and fairness are in the Constitution when that phrase is really not in 
the Constitution, and the danger of those words are they are great 
ideals, but they are general; they have no definitiveness, and they 
give a platform for a judge to leap off into different issues about 
which he may personally feel deeply and simply do so on the basis that 
it is fair or it is a question of equality: This is fairness so I will 
just rule this way.
  We have preserved our Nation well by insisting that our judiciary 
remain faithful to the plain and simple words of the Constitution and 
the statutes involved.


                      Nomination of Timothy B. Dyk

  Mr. SESSIONS. Mr. President, I will use what time I have remaining on 
the Lynch nomination for the Dyk nomination, and I will yield the floor 
to Senator Smith who wants to speak.
  Mr. Dyk has been nominated to the Federal circuit here in Washington. 
Mr. Dyk is a good lawyer, apparently with a good academic background, 
and has certain skills and abilities that I certainly do not dispute. I 
do not have anything against him personally, but I do have serious 
concerns about this court. I do not believe we need another judge on 
this court.
  The Federal circuit is a court of limited jurisdiction. It handles 
patent cases and Merit Systems Protection Board cases, certain 
international trade cases, and certain interlocutory orders from 
district courts. It is a specialized court and does not get involved in 
too many generalized cases.
  We have analyzed the caseload of this circuit. I serve on the 
Administrative Oversight and Courts Subcommittee of the Senate 
Judiciary Committee with Senator Chuck Grassley, who is chairman. I 
have been a practicing prosecutor for 15 years in Federal court before 
Federal judges; that is where I spent my career. I know certain judges 
are overwhelmed with work, and I have observed others who may not be as 
overwhelmed with work.
  I will go over some numbers that indicate to me without doubt that 
this circuit is the least worked circuit in America. It does not need 
another judge, and I will share this concept with fellow Members of the 
Senate.
  They handle appeals in the Federal Circuit, appeals from other court 
cases and boards. In 1995, there were 1,847 appeals filed in the 
Federal Circuit. Four years later, in 1999, that number had fallen to 
1,543 appeals, a 16-percent decline in cases filed.
  Another way to look at the circuit is how many cases are terminated 
per judge. The Administrative Office of Courts provides a large 
statistical report. They analyze, by weighted case factors, judges and 
cases by circuits and districts and so forth. It is a bound volume. 
They report every year. The numbers are not to be argued with.
  The Federal Circuit has by far the lowest number of dispositions per

[[Page S4277]]

judge. The Federal Circuit has 141 cases per judge terminated. There 
are 11 judges now on that circuit. As a matter of fact, those 141 cases 
were when the court had 10 judges. We now have 11 judges on that court, 
and we are talking about adding Mr. Dyk, who would be the 12th judge on 
that court, to take the numbers down even further.
  The next closest circuit is a circuit that is also overstaffed--the 
D.C. Circuit. I have opposed nominees to the D.C. Circuit in 
Washington. Oddly enough, both the circuits that I believe are 
overstaffed and underworked are located in this city. The average case 
dispositions for a circuit judge in America are more than double that. 
Let me provide some examples.
  The Third Circuit average number of terminations per judge is 312; 
the Fourth Circuit, 545; the Fifth Circuit, 668--that is four times 
what the Federal Circuit does--the Seventh Circuit, 352; Eighth 
Circuit, 440; Ninth Circuit, 455, the Tenth Circuit, 350; the Eleventh 
Circuit--my circuit, Florida, Alabama, and Georgia--820 cases, compared 
to 141. That is six times as many cases per judge in the Eleventh 
Circuit as in the Federal Circuit.
  The taxpayers of this country need to give thought to whether or not 
we need to add a judge to this circuit. It is pretty obvious we ought 
to consider that. Terminations per judge on the Federal Circuit 
represent only 17 percent of the cases terminated by a judge on the 
Eleventh Circuit.
  Senator Grassley issued a report on March 30, 1999, ``On the 
Appropriate Allocation of Judgeships in the United States Court of 
Appeals.'' The report assessed the need to fill one vacancy on the 
Federal Circuit. The court already had 11 active judges of the 12 
authorized.
  The Federal Circuit also had five senior judges at that time. Senior 
judges contribute a lot to the workload. That is a pretty high number. 
Almost half as many judges are senior judges who come in on a less-work 
level. They don't handle the most important en banc cases, but they 
participate in drafting opinions. They have law clerks. Many of them do 
almost as many cases as an active judge. So they have five senior 
status judges. Maybe it is down to four now, but at that time there 
were five senior judges.
  The Grassley report states:

       In fact, the current status of the circuit actually 
     supports the argument that the court could do its job with a 
     smaller complement of 11 judges. As such, the case has not 
     yet been made that the current vacancy should be filled.

  That remains true today. The Federal circuit has 11 active judges now 
and 4 senior judges.
  On the issue of the cost of a judgeship, people ask, how much does it 
cost to add another judge? Just add a judge and pay his salary, 
$140,000, $150,000 a year? That is not too bad. However, the actual 
cost of a Federal judge is $1 million annually. They have two, three 
law clerks, secretaries, office space, libraries, computers, travel 
budgets, and everything that goes with being a Federal appellate judge. 
It is an expensive process. That number is a legitimate number, 1 
million bucks.
  We have judges in this country who are working night and day, but 
this circuit is not one of them. Before we do not fill some of those 
vacancies, before we do not add new judges to some of those districts--
and it is not that many, but some are really overworked--we ought to 
think about whether we ought to continue a judge where we don't need 
one.
  The Grassley report also dealt with the problem of having more judges 
than you need, sort of a collegiality question. The report said:

       Judge Tjoflat [chief judge at the Eleventh Circuit at one 
     time] testified that some scholars maintain that a 
     ``perfect'' appellate court size is about 7 to 9 judges, and 
     when a court reaches 10 or 11 judges, ``you have an 
     exponential increase in the tension on the court of the 
     ability of the law not to be certain.'' Judges claimed that 
     there is a marked decrease in collegiality when the appeals 
     court is staffed with more than 11 or 12 judges. Chief Judge 
     Posner of the Seventh Circuit thought that with 11 judges, 
     the Seventh Circuit was ``at the limit of what a court ought 
     to be'' in terms of size.

  The Seventh Circuit had more than twice as many cases per judge as 
the Federal Circuit does today.
  The Grassley report further stated there is a consistency cost with 
expanding courts:

       Not only is there a loss in collegiality the larger a court 
     becomes, there is also an increase in work required by the 
     judges to maintain consistency in the law. Judge Wilkinson 
     felt that more judges would not lighten the burdens of a 
     court, but would actually aggravate these burdens further.

  The Federal Circuit, to which this judge would like to be appointed--
and it would be a good position to draw that big Federal judicial 
salary and have the lowest caseload in America --has the lowest 
terminations per judge of any circuit court of appeals. It has a 16-
percent decrease in overall caseload, with a clear recommendation from 
the Grassley subcommittee report that there is not a need to add 
another judge to this circuit.
  I suggest that we not approve this judge, not because he is not a 
good person but because we don't need to burden the taxpayers with $1 
million a year for the rest of his life to serve on a court that 
doesn't need another judge. In fact, they could probably get by with 
two or three fewer judges than they have right now and still have the 
lowest caseload per judge in America.
  We don't have money to throw away. People act as though a million 
dollars isn't much money. A million dollars is a lot of money where I 
came from. I think we ought to look at that and put our money where we 
have to have some judges. There are some of those areas.
  I thank the Chair for the time to express my thoughts on the Dyk 
matter and yield the remainder of my time to Senator Smith from New 
Hampshire.
  The PRESIDING OFFICER. The Senator from New Hampshire.
  The PRESIDING OFFICER. Nineteen minutes remain for the Senator from 
Alabama. Fifteen additional minutes are under the control of the 
Senator from Utah.
  Mr. SMITH of New Hampshire. Mr. President, I rise today in opposition 
to the nominations of both Mr. Dyk and Mr. Lynch. But I also rise to 
briefly discuss the role of the Senate in judicial nominations, the 
issue of advice and consent. What is the appropriate role for the 
Senate? Should we be out here opposing nominations? You can be 
criticized for it because they say: Well, the President is in the other 
party; therefore, every time you oppose a nomination, it is for 
political reasons.
  The truth is, by either voting for or not asking for a recorded vote, 
I have allowed many Clinton nominees to move forward. But I think we 
have an obligation under the advise and consent clause of the 
Constitution that if we don't think the judge is qualified to be on the 
Court, or perhaps he or she is too much of an activist and not really 
upholding the Constitution as it was written, then I think we have an 
obligation to say that.
  It is with some reluctance I must do that. That is my view. When I 
say ``qualified,'' we don't merely look at the educational background 
of the nominee or to the employment history to understand 
qualifications. I am more interested in the judicial philosophy: Is 
this nominee going to be an activist judge for one issue or another? 
Whether conservative or liberal, is that the purpose of a judge--to go 
on the Court and be an activist for some particular issue--or is it 
more appropriate for the judge to go on the Court and be an activist 
for the Constitution of the United States and interpret that 
Constitution correctly? The latter is what I believe is the appropriate 
thing to do.
  As a member of the Judiciary Committee, I have searched through many 
of the nominees this President has sent forward. I must say I am 
shocked at the amount of judicial activists. We have had some great 
clashes in this body on Presidential nominees for the Court--Robert 
Bork, to name one, and Clarence Thomas was another. It seems that when 
the liberal side of the aisle goes after a judge, it is always 
appropriate, but if we go after a judge because we think he or she is 
too far to the left in terms of activism, then, of course, it is wrong.

  But article II, section 2, of the Constitution states that the 
President ``shall nominate, and by and with the Advice and Consent of 
the Senate, shall appoint Ambassadors, other public Ministers and 
Consuls, Judges of the Supreme Court, and all other Officers of the 
United States, whose Appointments are not herein otherwise provided 
for, and which shall be established by Law.'' That means the lower 
courts, to put it in simple terms.
  The Senate is not a rubber stamp for any nomination, nor should it 
be. We

[[Page S4278]]

have a right to speak out, and I specifically, along with Senator 
Sessions, asked for a recorded vote in the case of Mr. Dyk and Mr. 
Lynch because I believe the Senate should go on record. Sometimes if 
the nominees are not controversial but simply share a different 
philosophical view from mine and are not activist, and based on their 
background I believe they will look at the Constitution as fairly as 
possible, in an objective manner, I don't object to those nominees.
  I don't expect President Clinton to appoint a judge I might appoint. 
I respect that, and I understand that. That is not the reason for the 
advise and consent clause, to simply disapprove every single nominee 
because you disagree with the President's politics.
  The framers of our Constitution settled on a judicial selection 
process that would involve both the Senate and the President. Remember, 
these are lifetime appointments. There is no going back, unless some 
horrible thing happens in terms of malfeasance, where the judge is 
impeached. But for the most part, a judicial appointment is lifetime. A 
Federal judge is a Federal judge for life. So if a few of us come down 
to the Senate floor, as Senator Sessions and I have done, and talk 
about these nominees, I don't think that is so bad. They are appointed 
for life. So if we have concerns, I think they should be raised. That 
is legitimate on either side of the aisle.
  Nominees who are a danger to the separation of powers, who have shown 
evidence of legislating from the bench, those are the kinds of nominees 
to whom I am opposed. I am not opposed to nominees based on a 
President's political philosophy. I am opposed to nominees who have 
shown evidence of legislating from the bench. That is a very important 
point to make.
  I might also say, before discussing specifically the two nominees 
just for a moment, that there is some irony in this debate today 
because this is the first time nominations have come before the Senate 
for a vote since the President of the United States has been 
recommended for disbarment as an attorney by the State of Arkansas. 
Now, I don't know if that has happened in American history before. I 
don't believe so. So I think I am correct in saying this is the first 
time in American history that a sitting President has been recommended 
for disbarment from the State he came from, and then that same 
President is submitting nominees to the courts in our land.
  I do not mean to imply anything by this in terms of the 
qualifications of the nominees, about their conduct in office or 
anything such as that. That is not the intention. The intention here is 
to point out that it is somewhat ironic that a man who showed total 
disregard for the law, according to the law in the State of Arkansas, 
would now be sending judges up to the Senate for approval. So I bring 
this to the attention of my colleagues because it is the first time in 
American history this has ever happened. We are standing here in 
judgment of people who are appointed by a President who has been 
recommended for disbarment.

  The Arkansas bar, as you know, a day or so ago recommended this. A 
committee of the Arkansas Supreme Court recommended this past Monday 
that the President be disbarred because of ``serious misconduct'' in 
the Paula Jones sexual harassment case. A majority of the panelists who 
met Friday to consider two complaints against the President found that 
the President should be disciplined for false testimony about his 
relationship with Monica Lewinsky, the Arkansas Supreme Court said. He 
was, indeed, fined by another judge from Arkansas for lying under oath.
  So it is ironic we are debating the qualifications of many fine 
jurists, frankly, before us today, and in the newspapers we read about 
how our President is facing disbarment. So it is a unique situation we 
face here and one I want everybody to understand.
  We break a lot of ground here. We do a lot of things that have never 
been done before. We had an impeachment trial in the Senate a few 
months ago. The Senate, in its infinite wisdom, said the President was 
not guilty, but the Arkansas bar said otherwise. So it is a very 
interesting twist of fate that now nominees are being sent to the 
Senate by a man who is recommended for disbarment, and probably will be 
disbarred, from the practice of law in the State of Arkansas.
  Let me conclude on a couple of points on the nominees. I have spent a 
lot of time on the nomination of Timothy Dyk, and I am very much 
opposed to Mr. Dyk being a District Judge for the U.S. Circuit Court of 
Appeals for the Federal Circuit. Some of the material I looked at I am 
not going to go into on the Senate floor. But a couple of things in 
which Mr. Dyk was involved concerned me.
  In a Washington Post article appearing in May of 1984, the Post 
reported that Timothy Dyk ``agreed to work for free for the anti-
censorship lobby, People for the American Way, to sue the Texas Board 
of Education over the board's 10-year-old rule that evolution be taught 
as ``only one of several explanations of the origins of mankind.''
  People for the American Way is pretty much a liberal activist, anti-
Christian group that seeks to rid public education of any mention of 
God at all in its educational language and literature, or in schools.
  The president for the People for the American Way, Ralph G. Neas, 
spoke in January of 1999 about his vision of the People for the 
American Way. Listen to what he said because you have to remember that 
Mr. Dyk worked for them pro bono, for nothing. Mr. Neas said:

       As you may know, People for the American Way has always 
     carefully monitored the radical religious right and its 
     political allies.

  Mr. Neas believes that most if not all Republicans are members of the 
``radical right.''
  He further said:

       The effort by some elements of the conservative religious 
     and political movements to undermine support for public 
     education goes back decades before Phyllis Schlafly and Gary 
     Bauer and Pat Robertson came on the scene, before the days of 
     the Heritage Foundation, back before Newt Gingrich and the 
     Contract with America.

  As you can see by his comments, People for the American Way is now 
and has always been an anti-Christian, anti-conservative organization.
  He continues by attacking Orrin Hatch, Governor George Bush, and 
Senator John McCain for supporting schooling voucher legislation.
  Let me repeat that. He attacked Senator John McCain, Senator Orrin 
Hatch, and Governor George Bush for supporting school vouchers.
  I guess Timothy Dyk might turn out to be one of the greatest judges 
in the history of the world, for all I know. I can't predict that. I am 
not in the business of predicting the future. I am trying to take a 
look at what I have before me to make a decision on whether or not a 
person is fit to be on the court.
  I understand that the U.S. Chamber of Commerce is a staunch 
supporter, but I have to vote no because I don't believe that a 
potential judge who uses that kind of language and who makes those 
kinds of decisions with those kinds of organizations on a pro bono 
basis is the kind of person I want on the court.
  I must say that there are thousands of judges--and thousands of 
people who want to be judges--all over America who serve, do it 
honorably, and interpret the Constitution as fairly and as equitably as 
possible.
  Why is it that time and time again before this body come these 
outrageous judicial activists appointed by this President? Some have 
said, well, the other side of the aisle gave you a lot of judges during 
the Bush administration. A lot of those judges, if not most, were not 
judicial activists.
  It is one thing to have a different philosophical view and to be 
nominated by a President of a different philosophical view. We are not 
interested in philosophy on the Supreme Court, or on any court. We are 
interested in supporting the Constitution and interpreting the 
Constitution the way the founders would have wanted us to do it. They 
are not your activists. I don't care about your activists. But I think 
when you hear people representing on a pro bono basis--for no money; 
you are doing it because you want to do it; you are not getting paid--
there is a difference. When somebody retains you as a lawyer, you have 
every right to do that. That is the American way, and you have every 
right to do it pro bono. But it tells you about somebody when they 
represent somebody pro bono. Terrorists were represented pro bono by 
Mr. Dyk.

[[Page S4279]]

  I think when you are looking at these things, you have to say to 
yourself, well, these are the people with whom he wants to surround 
himself with pro bono services. I guess I have to ask, isn't there 
anybody out there somewhere that we could have as a nominee who doesn't 
have to be out there talking about and criticizing Members of the 
Senate because they support school vouchers and are representing groups 
that do that, or even on the issue of evolution? I think it is going 
too far. I think it is sad, frankly, that we have to deal with it.
  The other nominee before us who has been talked about already is 
Gerald Lynch for the Southern District of New York. The reason I oppose 
his nomination is for the same reasons.
  As my colleague, Senator Sessions, quoted, Attorney Lynch wrote:

       Justice Brennan's belief that the Constitution must be 
     given meaning for the present seems to me a simple necessity; 
     his long and untiring labor to articulate the principles of 
     fairness, liberty, and equality found in the Constitution in 
     the way that he believed made most sense today seems far more 
     honest and honorable than the pretense that the meaning of 
     those principles can be found in eighteenth or nineteenth-
     century dictionaries.

  That is a pretty legalistic phrase. Let's put it in English. It means 
what the founders said in the 1700s isn't relevant. It is not relevant. 
It is relevant today. What is relevant today is relevant today. And, 
frankly, the Constitution those guys wrote in the late 1700s doesn't 
apply to us today. The Constitution is not the same. It is totally 
wrong.
  Why is it that we criticize those who wrote the Constitution when we 
attribute time and time again to some great people who profess to be 
scholars on the Constitution? They come down here on the Senate floor 
saying: You know, the founders didn't mean that; that isn't what they 
meant; they didn't mean to say that; if you look at it literally, it 
does not mean that.
  When you go back and find the comments of the founders, over and over 
again the founders say exactly what they meant. Not only did they write 
it in the Constitution but they explained it in their own words in the 
debate. And they still say they didn't mean what they said.
  I think if you find a document that was written by somebody and then 
you find the explanation, and it says what they meant--they said, 
``This is what I meant''--that is pretty obvious.
  I think we are seeing evidence here again of a person who will be 
another judicial activist who is going to say the Constitution isn't 
relevant today, so, therefore, I can put my interpretation into the 
Constitution. That is the kind of nominees that we are talking about 
here. This is very troubling.
  That is why I rise today to oppose both the nominations of Timothy 
Dyk and Gerard Lynch, and I will also oppose a couple of other nominees 
in the future.
  Mr. LEAHY. Mr. President, I am delighted to support the confirmation 
of Jerry Lynch to the District Court for the Southern District of New 
York. Professor Lynch is the Paul J. Kellner Professor of Law at 
Columbia Law School, the outstanding law school from which he received 
his law degree in 1975. He began his legal career by clerking on the 
Second Circuit Court of Appeals for Judge Feinberg and then on the 
United States Supreme Court for Justice Brennan.
  He served as an Assistant U.S. Attorney in the Southern District of 
New York back in the early 1980's and as the Chief Appellate Attorney 
for that office. In 1990 he returned to the office at the request of 
President Bush's U.S. Attorney to head the Criminal Division of that 
office.
  Even his opponents must describe him as ``a man of personal integrity 
and a man of considerable legal skill.'' That he is. He is also a 
person who served as a prosecutor during two Republican 
Administrations.
  Professor Lynch is well aware that he has been nominated to the 
District Court and not to the United States Supreme Court and that he 
will be bound by precedent. He has committed to follow precedent and 
the law and not to substitute his own views. In his answers to the 
Judiciary Committee, he wrote:

       There is no question in my mind that the principal 
     functions of the courts is the resolution of disputes and 
     grievances brought to the courts by the parties. A judge who 
     comes to the bench with an agenda, or a set of social 
     problems he or she would like to ``solve,'' is in the wrong 
     business. In our system of separation of powers, the courts 
     exist to apply the Constitution and laws to the cases that 
     are presented to them, not to resolve political or social 
     issues. The bulk of the work of the lower courts consists of 
     criminal cases and the resolution of private disputes and 
     commercial matters.

  In fact, in specific response to written questions from Senator 
Sessions, Professor Lynch wrote that he understands that the role of a 
district court judge requires him to follow the precedents of higher 
courts faithfully and to give them full force and effect, even if he 
personally disagrees with such precedents.
  His opponents excerpt a couple lines of text from a 1984 book review 
and a eulogy to his former boss, Justice Brennan, rewrite them and 
argue that their revisions of his words indicate a judicial philosophy 
that he will not enforce the Constitution but his own policy 
preferences. They are wrong.
  I have read the articles from which opponents excerpted out of 
context a phrase here and a phrase there to try to construct some 
justification for opposing this nominee. In his 1984 book review, 
Professor Lynch was criticizing a book that defended the legitimacy of 
constitutional policymaking by the judiciary. That's right: Professor 
Lynch was on the side of the debate that criticized personal 
policymaking by judges and counseled judicial restraint.
  Professor Lynch criticized the author for a ``theory justifying 
judges in writing their own systems of moral philosophy into the 
Constitution.'' Nonetheless, opponents of this nominee turn the review 
on its head, as if Professor Lynch were the proponent of the 
proposition he was criticizing.
  These opponents take a throw-away line out of context from the book 
review and miss the point of the review. What his critics miss is the 
fact that Professor Lynch argued against the Supreme Court being the 
politically activist institution that the book he is criticizing seeks 
to justify. Professor Lynch argues against judges, even Supreme Court 
Justices, becoming moral philosophers. He writes, following the excerpt 
on which his critics rely:

       [N]either of these claims has force when the Court speaks 
     through the medium of moral philosophy. First, there is 
     little reason to expect judges to be more likely than 
     legislators to reach correct answers to moral questions. 
     After all, judges possess no particular training or expertise 
     that gives them better insight than other citizens into 
     whether abortion is a fundamental right or an inexcusable 
     wrong. Disinterestedness alone does not determine success in 
     intellectual endeavor. . . .

  Ignored by his critic is also the written answer that Professor Lynch 
furnished Senator Sessions explaining what he meant by the statement 
that is being misread and misinterpreted, again, by his opponents. 
Professor Lynch explained:

       The quoted statement comes from a book review in which I 
     sharply criticize a book that makes the claim that courts 
     have authority to enforce moral principles of its own 
     choosing, a position I do not share. In the quoted passage, I 
     was attempting to explain why the Supreme Court is given 
     power to enforce the text of a written Constitution.

  The other quote being criticized is taken from a short memorial to 
Justice Brennan, a man for whom Professor Lynch had clerked and whom he 
respected. The memorial was apparently written just after Justice 
Brennan's funeral. Professor Lynch wrote of Justice Brennan's humanity 
and his patriotism. Nonetheless, it appears that even this statement of 
tribute to a departed friend is grist for the mill of opponents looking 
for something they can declare objectionable.
  Ignored by opponents is the direct response to Senator Sessions' 
question about the eulogy for Justice Brennan. Professor Lynch 
responded to Senator Sessions:

       The statement quoted comes from a eulogy to Justice Brennan 
     on the occasion of his death. I do not believe that good 
     faith attempts to discern the original intent of the framers 
     are dishonest or dishonorable. Judges and historians daily 
     make honorable and honest attempts to understand the thoughts 
     of the framers.
       Too often, however, the history that lawyers present to 
     courts is deliberately or inadvertently biased by the 
     position that lawyers as advocates would like to reach, and 
     such resort to partial and limited sources can be used to 
     support results that accord with policy preferences. While 
     Justice Brennan took positions that can be criticized as 
     activist, it

[[Page S4280]]

     is generally agreed that he was forthright in stating his 
     approach.

  Likewise ignored is Professor Lynch's statement to Senator Sessions: 
``The judge's role is to apply the law, not to make it.''
  Also ignored are the acknowledgments by Professor Lynch in the course 
of the memorial itself that the ``charge that Justice Brennan confused 
his own values with those of the Constitution does capture one piece of 
the truth'' and that the ``problem, and here is the heart of the 
argument against Brennanism, is that there will always be different 
interpretations of what those core shared values mean in particular 
situations.'' I commend Professor Lynch for his candor.
  It is sad that Senators have come to oppose nominees and the Senate 
has refused to move forward on nominees because they clerked, as young 
lawyers just out of law school for a certain judge or because clients 
they represented during the course of their practice and while 
fulfilling their professional responsibilities had certain types of 
claims and charges against them or brought certain types of claims. 
That is what underlies the opposition to both this highly qualified 
nominee and to Fred Woocher, a nominee to an emergency vacancy on the 
District Court for the Central District of California.
  Mr. Woocher participated in a confirmation hearing last November and 
has been denied consideration by the Judiciary Committee for more than 
six months. Mr. Woocher has had a distinguished legal career and is 
fully qualified to serve as a District Judge. But Mr. Woocher clerked 
for Justice Brennan after his academic studies at Yale and Stanford.
  Apparently, Senators who are holding up consideration of Mr. Woocher 
likewise believe that those who do not favor the conservative activism 
of Justice Scalia or Chief Justice Rehnquist should oppose the 
appointment of people who clerked for such jurists. Certainly that is 
the point that they are establishing by their opposition to these 
outstanding nominees.
  Any Senator is entitled to his or her opinions and to vote as he or 
she sees fit on this or any nominee. But the excerpts relied upon by 
opponents of Professor Lynch, from over 20 years of writing and legal 
work, do not support the conclusion that Professor Lynch is insensitive 
to the proper role of a judge or that he would ignore the rule of law 
or precedent. To charge that Judge Lynch would consider himself not to 
be bound by the plain words of the Constitution is to misperceive Jerry 
Lynch and ignore his legal career.
  With respect to the unfounded charge that Professor Lynch would 
interpret the Constitution by ignoring its words, that is simply not 
true. Here is what Professor Lynch told Senator Thurmond at his 
confirmation hearing:

       I believe, Mr. Chairman, that the starting place in 
     interpreting the Constitution is with the language of the 
     document. As with legislation passed by the Congress, it is 
     the wording of the Constitution that was ratified by the 
     people and that constitutes the binding contract under which 
     our Government is created.
       In attempting to understand the language, it is most 
     important to look to the original intent of those who wrote 
     it and the context in which it was written. At the same time, 
     with respect to many of those principles, the Framers 
     intended to adopt very broad principles. Sometimes the 
     understanding of those principles changes over time.

  In truth, the opposition to this nomination seems to boil down to the 
fact that Professor Lynch clerked for Justice Brennan, a distinguished 
and respected member of the United States Supreme Court, more than 20 
years ago.
  In light of the arguments made by the Senator of Alabama on the 
workload of the Federal Circuit, I wanted to add to the Record the 
letter from the Chamber of Commerce to the Subcommittee on 
Administrative Oversight and the Courts from last summer. Although 
these statistics are as out of date as those used by the Senator from 
Alabama, the letter makes several important points. The caseload of the 
Federal Circuit is not inflated by prisoner cases but is filled with 
complicated intellectual property cases and other complex litigation. I 
ask consent to print the August 1999 letter from the Chamber of 
Commerce in the Record.
  There being no objection, the letter was ordered to be printed in the 
Record, as follows:

                                        Chamber of Commerce of the


                                     United States of America,

                                   Washington, DC, August 3, 1999.
     Hon. Charles E. Grassley,
     Chairman, Subcommittee on Administrative Oversight and the 
         Courts, Hart Senate Office Building, Washington, DC.
       Dear Chairman Grassley: This letter again urges that the 
     Judiciary Committee promptly consider the nomination of 
     Timothy Dyk for the Federal Circuit and that that nomination 
     be reported out of Committee before August recess. It has 
     been almost sixteen months since Mr. Dyk was first nominated 
     to the Federal Circuit, it has been nearly a year since he 
     was first voted out of Committee. So far as the Chamber is 
     aware, he is the only judicial nominee voted out of Committee 
     last year who has been scheduled for a second hearing. We 
     urge that a second hearing is unnecessary.
       We understand that the principal concern about Mr. Dyk's 
     nomination now relates to the need to fill the vacancy. There 
     are now not one, but two vacancies on the Federal Circuit. We 
     recommend that Mr. Dyk's nomination be acted upon promptly so 
     that the Federal Circuit will not be seriously understaffed.
       The question about the need to fill the vacancy was 
     considered in the March 1999 Report on the Appropriate 
     Allocation of Judgeships in the United States Courts of 
     Appeals. The Report generally agrees that ``the best measure 
     of when a court requires additional judges is how long it 
     takes, after an appeal is filed with a court, to reach a 
     final decision on the merits.'' (p.5) The Report also states 
     that: Over the last five years, the Federal Circuit's ``mean 
     disposition is the lowest of any circuit court. . . .''
       But the Report's comparison between the Federal Circuit and 
     the other Circuits is a comparison of apples and oranges. The 
     Federal Circuit data appear to have been computed using a 
     ``mean'' or average number, while the data for the other 
     Circuits was computed using a median number. Over the most 
     recent five-year period (1994-1998), using median data, the 
     disposition time for the Federal Circuit exceeded that for 
     the Second, the Third and the Eighth Circuits. The most 
     recent data (for 1998) show that the median disposition time 
     for the Federal Circuit equals or exceeds that from four 
     other Circuits (the First, Third, Eighth and District of 
     Columbia). Moreover, the median disposition time for the 
     Federal Circuit increased 20%; from 7.9 months in 1994 to 9.5 
     months in 1998. These data directly support acting on the 
     pending nomination.
       To be sure the Federal Circuit has a smaller numerical 
     caseload than other Circuits because the Federal Circuit, as 
     Congress prescribed, does not hear criminal or prisoner 
     cases. But it does have a heavy (and increasing) docket of 
     intellectual property cases and other forms of complex 
     litigation.
       Congress intended to give the Federal Circuit exclusive 
     jurisdiction over patent cases, and to be the court of last 
     resort in the vast majority of those cases. (Supreme Court 
     Review is unlikely because there can be no conflict with 
     another Circuit). Under these circumstances, it is critical 
     to the Congressional design and to the business community 
     that the court not give short shrift to these important 
     cases. There is a substantial risk that if the Federal 
     Circuit is understaffed, and limited to ten judges, it will 
     not have time to give these cases the attention that they 
     deserve. The Chamber, as well as business-organizations such 
     as Eastman Kodak, Ingersoll Rand and Lubrizol, expressed this 
     concern to the Committee.
       Finally, we understand Senator Grassley's concern that the 
     Federal Circuit does not have a formal mediation program. We 
     note that Mr. Dyk, in his first hearing, supported the 
     creation of such a program, and that he has extensive 
     experience in mediating intellectual property cases. He could 
     make it important to the Court in that area, and we urge that 
     the Court be allowed to secure the benefit of Mr. Dyk's 
     services as soon as possible.
           Sincerely,
                                                 Lonnie P. Taylor.

  Mr. KOHL. Mr. President, I rise to support the long overdue 
confirmation of Tim Dyk to the Federal Circuit. The Judiciary Committee 
reported out Mr. Dyk in 1998 by an overwhelming, bipartisan margin. 
Unfortunately, Mr. Dyk's nomination died a slow death last Congress, as 
he waited in vain for confirmation by unanimous consent or, in the 
alternative, at least a floor vote.
  This Congress, Mr. Dyk has had wait yet another year and a half for 
Senate consideration after his renomination and second overwhelming 
Judiciary Committee approval. This delay has been unfair to Mr. Dyk and 
his family, who have had to put their lives on hold as he awaits 
confirmation. It has also been unfair to the Federal Circuit, which 
will be enormously enhanced by his ascension. We are lucky Mr. Dyk was 
willing to wait; other outstanding candidates, however, may be 
dissuaded from making the already arduous sacrifices necessary to serve 
in the federal judiciary.
  Finally, it now appears that Mr. Dyk is reaching the end of his long 
road to

[[Page S4281]]

confirmation and will soon take his deserved seat on the bench. He is 
an excellent candidate--a graduate of Harvard College and Harvard Law 
School, a law clerk to Chief Justice Earl Warren on the Supreme Court, 
and a litigator with a long, distinguished practice and a history of 
public service.
  I strongly support this nominee and urge my colleagues to join me in 
supporting his confirmation.
  Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. McCONNELL. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.


                      Nomination of Bradley Smith

  Mr. McCONNELL. I yield myself whatever time I consume.
  Mr. President, I begin my comments by rebutting some of the points 
made by colleagues on the other side of the Brad Smith nomination. One 
of the quotes used against Professor Smith out of context was that he 
said:

       The most sensible reform is the repeal of the Federal 
     Election Campaign Act.

  Using this quotation to imply that Professor Smith would repeal the 
FECA exemplifies the meritless arguments being used to block the 
nomination of the most qualified FEC nominee in the history of the 
Federal Election Commission.
  When this statement is read in context and the ellipsis are removed, 
it is clear that Professor Smith is only talking about the contribution 
limits in the Federal Election Campaign Act. On that point he is in 
pretty good company: Chief Justice Warren Burger and Justice Hugo Black 
also held that view. Justices Scalia and Thomas hold that view. 
Professor George Priest of the Yale Law School, Professor John Lott of 
Yale Law School, Dean Kathleen Sullivan at Stanford Law School, Dean 
Nelson Polsby at George Mason Law School, and former Solicitor General 
and Justice of the Massachusetts Supreme Court and now Harvard law 
professor, Charles Fried, have all espoused this view on campaign 
contribution limits.
  I assume all of them would by that argument be barred from serving on 
the Federal Election Commission. Of course, they would not be barred 
from serving on the Federal Election Commission, and neither should 
Professor Smith.
  In holding this view, Mr. Smith is no more in disagreement with the 
law than the Brennan Center and Common Cause, Professor Neuborne, and 
others who think the law should allow expenditure limits. These people 
at the Brennan Center and Common Cause advocate a position contrary to 
the law as declared by the Supreme Court in Buckley and affirmed in 
Shrink PAC. Under the standard being applied to Mr. Smith, all of them 
are barred also from serving on the FEC. Clearly, that would be an 
absurd result.
  The Democratic nominee before the Senate, Mr. McDonald, disagrees 
even more sharply with the Supreme Court than Professor Smith. In open 
and recorded meetings of the FEC on August 11, 1994, in response to a 
recitation of election laws interpreted by the Supreme Court, Mr. 
McDonald declared: The Court just didn't get it.
  He doesn't care what the courts say. Clearly, we can't confirm him if 
disagreement with the law disqualifies an FEC nominee. If there is 
anyone who has displayed contempt for the law, it is Danny McDonald, 
not Brad Smith.
  Mr. Smith has acknowledged that his view that there should be no 
contribution limits is no more the law than is the view of the Brennan 
Center and Common Cause and some of my colleagues that there should be 
expenditure limits. Moreover, he has made clear he would have no 
problem enforcing contribution limits.
  When asked if he would pledge to uphold his oath, he said he would 
proudly and without reservation take that oath, and everyone who knows 
him, including Dan Lowenstein, former national board member of Common 
Cause, has no doubt that Brad Smith will faithfully enforce the laws 
written by Congress and interpreted by the courts.
  Professor Smith's detractors fail to note that he has made clear in 
his testimony before the Rules Committee that if the Shrink Missouri 
case had been a Federal case and come before the FEC for an enforcement 
action, he would have had no problem voting for enforcement action in 
that kind of case.
  So the notion that Smith ignored Shrink PAC in his testimony is 
completely unfounded. I refer my colleagues to page 40 of the Rules 
Committee Hearing Report dated March 8 of this year. Opponents argue 
Professor Smith says problems with election law have been ``exacerbated 
or created by the Federal Election Campaign Act'' as interpreted by the 
courts.

  So what? Supreme Court Justices have expressed concern that the 
Federal Election Campaign Act as interpreted by the courts has had 
unintended consequences which have exacerbated or created problems with 
our campaign finance system. The Supreme Court Justices have said that. 
In Shrink PAC, Justice Kennedy opined: It is the Court's duty to face 
up to adverse, unintended consequences flowing from our prior 
decisions.
  He goes on to assert, FECA and cases interpreting it have ``forced a 
substantial amount of political speech underground.'' Noting the 
problems created by the Federal Election Campaign Act, Justice Kennedy 
explained that under existing law ``issue advocacy, like soft money, is 
unrestricted--see Buckley at 42 to 44--while straightforward speech in 
the form of financial contributions paid to a candidate, speech subject 
to full disclosure and prompt evaluation by the public, is not * * * 
This mocks the First Amendment. Our First Amendment principles surely 
says that an interest thought to be the compelling reason for enacting 
a law is cast into grave doubt when a worse evil surfaces than the 
law's actual operation.
  In my view, that system creates dangers greater than the one it has 
replaced.
  So, I guess this passage would disqualify Justice Kennedy of the 
Supreme Court from serving on the Federal Election Commission. So, are 
we to punish Professor Smith for telling the truth? Professor Burt 
Neuborne of the Brennan Center has written that at least three 
extremely unfortunate consequences flow from Buckley.
  Neuborne also writes that:

       Reformers overstate the level of downright dishonesty 
     existing in our political culture; furtherer deepening public 
     cynicism.

  Then is Professor Neuborne prohibited from serving on FEC? We all 
know that many of the problems with the current system are caused by 
excessively low contribution limits. President Clinton, other 
Democrats, and many people from my own party have publicly acknowledged 
this reality and the need for raising hard money limits. So I guess all 
of those folks would also be disqualified from serving on the FEC.
  Professor Smith is opposed also because he has written that the 
Federal election law is profoundly undemocratic and profoundly at odds 
with the first amendment.
  It has been said that Professor Smith is unfit for the FEC because he 
believes that the Federal election law is profoundly at odds with the 
first amendment. Quoting his 1995 policy study from Cato Institute:
  Here is the Supreme Court in Buckley. Justice Brennan, in fact, who 
is known to have written the opinion:

       The Supreme Court's decisions in Mills v. Alabama and Miami 
     Herald Publishing v. Tornillo held that legislative 
     restrictions on advocacy of the election and defeat of 
     political candidates are wholly at odds with the first 
     amendment.

  So, now we are keeping Professor Smith off the FEC, it is argued, for 
quoting from the majority opinion in the Buckley case? From quoting 
from the majority opinion in the Buckley case? Before reformers began 
attacking Justice Brennan for authoring this quotation that Mr. Smith 
has cited, let me note that Justice Brennan's observation has been 
borne out by the fact that provisions of FECA are still being declared 
unconstitutional as recently as the first week of May, when the Tenth 
Circuit Court of Appeals declared unconstitutional the party-
coordinated expenditure limits.
  It is worth noting this was in a 1996 case on remand from the Supreme 
Court, a case known as Colorado Republican, in which the Supreme Court 
declared unconstitutional the party

[[Page S4282]]

independent expenditure limits in the Federal Election Campaign Act, 
despite reformer assertions that they were undoubtedly constitutional.
  So, it is simply absurd to attack Professor Smith for quoting from a 
majority opinion in a Supreme Court case. But that is what Professor 
Smith's detractors are doing. They are saying he is unfit to serve on 
the Supreme Court--in this case the Federal Election Commission--
because he quotes majority opinions that are binding laws and factually 
correct statements of how FECA has been treated by the courts.
  I might also note that efforts to paint this quotation as an absolute 
statement of his views on the entire Federal Election Campaign Act also 
lack any merit. If one reads the article in which Bradley Smith recites 
this quotation by the Court, he makes clear that he supports many 
aspects of the Federal Election Campaign Act, including the statute's 
disclosure provisions. Arguments being asserted against Professor Smith 
are, at best, half truths constructred by reform groups, but many 
simply misstate Smith's position and reformers and their allies at the 
New York Times and the Washington Post persist in advancing these 
specious arguments, even after they have been shown to lack any merit 
whatsoever.
  It seems that Professor Smith's detractors will say anything to get 
what they want without any regard for either facts or logic.
  I also note even the intellectual leader of the reform movement, Burt 
Neuborne, has written that:

       The arguments against regulation are powerful and must be 
     respected.

  Professor Smith's opponents conclude he should not be confirmed 
because he has said:

       People should be allowed to spend whatever they want on 
     politics.

  Well, so what? Under current law, people can spend whatever they want 
in the form of independent expenditures. Parties can spend whatever 
they want in the form of independent expenditures and coordinated 
expenditures. Wealthy candidates such as Jon Corzine in New Jersey can 
spend whatever they want from their personal fortunes. Moreover, this 
statement clearly refers to expenditure limits. Since Buckley, the 
Supreme Court has consistently held expenditure limits 
unconstitutional. Although so-called reformers wish this were not the 
law, it is the law. So, again, we are punishing Professor Smith for 
stating what the law is, not what the reformers would like it to be.
  I would also like to note that Burt Neuborne of the Brennan Center 
agrees with Brad Smith that contribution and spending limits have 
undemocratic effects. Neuborne has written:

       Contribution and spending limits and unfair allocation of 
     public subsidies freeze the political status quo, providing 
     unfair advantage to incumbents.

  Even the Brennan Center acknowledges that disagreement over Buckley 
does not disqualify a person from interpreting Buckley. The Brennan 
Center has come under fire for its book ``Buckley Stops Here,'' and its 
views that the current Federal Election Campaign Act is flawed. I 
wonder if my colleagues on the other side of the aisle would vote 
against the executive director of the Brennan Center or the legal 
director of the Brennan Center who have criticized the current campaign 
finance law and the Supreme Court's decision in Buckley? The Brennan 
Center has committed blasphemy, equal to that of Professor Smith, by 
actually criticizing the reformers.
  For example, Burt Neuborne, the Brennan Center's legal director, has 
stated:

       Reformers overstate the level of downright dishonesty 
     existing in our political culture, further deepening public 
     cynicism.

  Moreover, Neuborne has written that:

       Contribution and spending limits freeze the political 
     status quo by providing unfair advantages to incumbents.

  Neuborne has gone after the Holy Grail here. He has actually 
criticized Congress and the Federal Election Campaign Act. Would those 
who oppose Brad Smith also oppose the Brennan Center?
  I would hope not. In fact, the Brennan Center's own web page 
acknowledges that this type of reasoning is invalid. Let me quote the 
Brennan Center regarding disagreements over Buckley and the Federal 
Election Campaign Act:

       The fact that a person believes that the Court should 
     revise its constitutional rulings does not mean that either 
     side disrespects the law or is disqualified from interpreting 
     Buckley. Moreover, there is no direct correlation between 
     attitudes towards Buckley and constitutional analysis of 
     proposed campaign finance reforms.

  One of the most troubling solutions asserted during this confirmation 
debate is that if a nominee has personally questioned the law of 
Congress, then somehow that nominee is disqualified from government 
service. Implementing these new type of litmus tests for government 
service seems shortsighted and ill advised, to put it mildly. Certainly 
most Members of Congress would be disqualified from future service in 
the executive or judicial branch under this new test, since nearly 
everyday we question the wisdom of our laws and regularly vote in 
opposition to various laws.
  This new litmus test barring government service for those who 
question the law would clearly exclude many fine and capable men and 
women. For example, it is not uncommon for Federal judges to personally 
disagree with Congress' efforts to establish mandatory minimum 
sentences or uniform sentences through the use of the Federal 
sentencing guidelines. Judge Jose Cabranes, of the Court of Appeals for 
the Second Circuit, is a widely respected legal scholar who has been 
mentioned by both Democrats and Republicans as a possible Supreme Court 
nominee.
  Judge Cabranes, however, has been a frequent and outspoken critic of 
the law he follows every day. He has written a book and law review 
articles arguing that current Federal sentencing laws and guidelines 
are ill conceived and ``born of a naive commitment to the ideal of 
rationality.'' Judge Cabranes has stated:

       The utopian experiment known as the U.S. Sentencing 
     Guidelines is a failure. . ..

  Moreover, the respected Judge Cabranes disagrees with what has been 
popularly referred to as reform. Specifically, the judge explains that 
the sentencing reformers' ``fixation on reducing sentencing disparity. 
. .has been a mistake of tragic proportions. . ..[T]he ideal [of equal 
treatment] cannot be, and should not be, pursued through complex, 
mandatory guidelines. We reject the premise of [the] reformers. . ..''
  Does this mean Judge Cabranes is unfit to be a Federal judge because 
he does not personally agree with the sentencing law he must follow 
every day from the bench? Is Judge Cabranes, who is an otherwise widely 
respected judge, unfit to serve because he disagrees with the 
reformers, the wisdom of Congress, and the sentencing laws? Of course 
not.
  Let's look to the Supreme Court for a moment on the specific issue of 
campaign finance law where reasonable people have and do disagree.
  In the landmark case of Buckley v. Valeo, the Court had the difficult 
task of harmonizing the Federal Election Campaign Act with the First 
Amendment to the Constitution. Ultimately, the Court's decision in 
Buckley established what has been the law of the land now for the past 
quarter-century. I think it is worth noting, however, that every 
Supreme Court Justice sitting in that case disagreed with the law 
Congress had passed.
  Several of these renowned Justices even questioned the law that was 
ultimately established by the Court's interpretation in Buckley. For 
example, Justice Thurgood Marshall dissented in part. Justice Blackmun 
dissented in part. Justice White, Chief Justice Burger, and the current 
Chief Justice Rehnquist--all of these jurists disagreed with both the 
law Congress passed and the law the Court created through its 
interpretation in Buckley.
  Several years after Buckley, Justice Marshall continued to question 
the law established in Buckley. Does that mean the Senate would have 
denied Justice Thurgood Marshall a seat on the FEC if he had desired 
such a seat? Would Justice Marshall be unfit to serve a fixed term on a 
bipartisan commission?
  What about Chief Justice Burger who argued Congress did not have the 
power to limit contributions, require disclosure of small 
contributions, or publicly finance Presidential campaigns? If the

[[Page S4283]]

Chief Justice had wanted a seat on the FEC, would the Senate have 
rejected Chief Justice Burger as unfit to serve? After all, Chief 
Justice Burger's opinion is in contrast with that of the New York 
Times. Would Chief Justice Burger have been unfit to serve a fixed term 
on a bipartisan commission?
  What about my fellow colleagues who question the Court's decision in 
Buckley? The junior Senator from California, for example, said on the 
floor of the Senate only a few months ago:

       I am one of these people who believe the Supreme Court 
     ought to take another look at Buckley v. Valeo because I 
     think it is off the wall.

  Would my colleagues on the other side of the aisle oppose the junior 
Senator from California if she retired from the Senate and wanted to 
become an FEC Commissioner? After all, she disagrees with the law and 
with the Court's decision in Buckley. Would she be unfit to serve?
  What about noted scholars such as Joel Gora, the associate dean of 
the Brooklyn Law School, who has criticized the Federal Election 
Campaign Act? Or Ira Glasser of the American Civil Liberties Union? 
Both Gora and Glasser were lawyers in the original Buckley case. Or 
Kathleen Sullivan, the dean of the Stanford Law School? Or Lillian 
BeVier of the University of Virginia Law School? Or Professor Larry 
Sabato of the University of Virginia and a former member of the 1990 
Senate Campaign Finance Reform Panel named by Majority Leader George 
Mitchell? Would these respected scholars, who question the law and 
share many of Professor Smith's election law views, be disqualified 
from Government service at the FEC?

  Professor Smith's sin, in the eyes of the reform industry, is 
twofold: One, he understands the constitutional limitations on the 
Government's ability to regulate political speech, and, two, he has 
personally advocated reform that is different from the approach favored 
by the New York Times.
  Let me say loudly and clearly, I believe that neither an appreciation 
for the first amendment nor disagreement with the New York Times and 
Common Cause should disqualify an election law expert for service on 
the Federal Election Commission.
  As the numerous letters that have been flooding to me at the 
committee establish, Professor Smith's views are well within the 
mainstream of constitutional jurisprudence and commend, not disqualify, 
him for Government service at the FEC. Personally, I think Professor 
Smith's 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.
  Let me point out that 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, the Brennan 
Center, and scholars such as Professors Ronald Dworkin, Daniel 
Lowenstein, and Burt Neuborne. I might add that reformers Neuborne and 
Lowenstein have both written strong letters in support of Brad Smith's 
scholarship and writings on campaign finance.
  The other camp is occupied by citizen groups ranging from the ACLU to 
the National Right to Life Committee, and scholars such as Dean 
Kathleen Sullivan, and Professors Joel Gora, Lillian BeVier, and Larry 
Sabato. It is probably fair to say Danny McDonald is in one camp and 
Brad Smith is in the other. I definitely agree with one camp more than 
I do the other, but I do not think agreement with either camp makes a 
person a lawless radical or a wild-eyed fanatic. And, I certainly do 
not think membership in either camp should disqualify a bright, 
intelligent, ethical election law expert from service on a bipartisan 
Federal Election Commission.
  Finally, and most importantly, the overwhelming letters of support 
for Brad Smith and his unequivocal testimony before the Rules Committee 
convince me without a doubt that Brad Smith understands that the role 
of an FEC Commissioner is to enforce the law as written and not to 
remake the law in his own image.
  As I mentioned earlier, critics who have philosophical differences 
with Professor Smith should heed the words of Professor Daniel Kobil, a 
former board member of Common Cause. This is what he had to say:

       I believe that much of the opposition--

  Referring to Professor Smith--

     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. . . .

  Let me add the sentiments of Professor Daniel Lowenstein of UCLA Law 
School, also a former board member of Common Cause. This is what he had 
to say:

       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.

  Let me say a few words about the Democrats' nominee to the FEC, 
Commissioner Danny McDonald. First, the obvious: McDonald and I are in 
different campaign finance reform camps. If I followed the new litmus 
test that is being put forth by some in this confirmation debate, then 
I would have no choice but to vigorously oppose his nomination.
  I have serious questions about McDonald's 18-year track record at the 
FEC. Commissioner McDonald's views and actions have been soundly 
rejected by the Federal courts in dozens of cases.
  One of these cases, decided earlier this year, Virginia Society for 
Human Life v. FEC, resulted in a nationwide injunction against an FEC 
regulation that Commissioner McDonald has endorsed for years.
  Let me point out that this McDonald-endorsed regulation had already 
been struck down by several other Federal courts. Yet McDonald has 
continued to defy the Federal court rulings and stubbornly refuses to 
support changing the regulation. Two other cases, FEC v. Christian 
Action Network and FEC v. Political Contributions Data, Inc. resulted 
in the U.S. Treasury paying fines because the action taken by McDonald 
and the FEC was ``not substantially justified in law or fact.''
  Just last Friday, the Tenth Circuit struck down yet another FEC 
enforcement action as unconstitutional.
  I ask unanimous consent to print in the Record a list of a dozen 
cases where the Federal courts have rejected the actions of McDonald 
and the FEC as unconstitutional.
  There being no objection, the list was ordered to be printed in the 
Record, as follows:

       Commissioner Mcdonald's views have been soundly rejected by 
     the federal courts in dozens of cases. The following twelve 
     cases are examples of the court's rejection of Mcdonald's 
     views as unconstitutional.
       One of these cases, decided earlier this year, Virginia 
     Society for Human Life v. FEC, resulted in a nationwide 
     injunction against an FEC regulation that Commissioner 
     Mcdonald has endorsed for years--in refinance of several 
     court rulings declaring it unconstitutional.
       Two of these cases, FEC v. Christian Action Network and FEC 
     v. Political Contributions Data, Inc. resulted in the U.S. 
     Treasury paying fines because the action taken by Mcdonald 
     and the FEC was ``not substantially justified in law or 
     fact.''
        1.  Fed v. Colorado Republican Party, U.S. Supreme Court, 
     116 S. Ct. 2309 (1996).
        2.  Fed v. National Conservative PAC, U.S. Supreme Court, 
     470 U.S. 480 (1985).
        3.  Colorado Republican v. FEC, 10th Circuit Court of 
     Appeals, 200 U.S. App, LEXIS 8952 (May 5, 2000).
        4.  FEC v. Christian Action Network, 4th Circuit Court of 
     Appeals, 110 F.3d 1049 (1997) (Court fined FEC for baseless 
     action).
        5.  Faucher v. FEC, 1st Circuit Court of Appeals, 928 F.2d 
     468 (1991).
        6.  Clifton v. FEC, 1st Circuit Court of Appeals, 114 F.3d 
     1309 (1997).
        7.  RNC v. FEC, D.C. Circuit Court of Appeals, 76 F.3d 400 
     (1996).
        8.  FEC v. Political Contributions Data, Inc., 2nd Circuit 
     Court of Appeals, 943 F.2d 190 (1991). (Court fined FEC for 
     baseless action).
        9.  FEC v. NOW, U.S. District Court for the District of 
     Columbia, 713 F. Supp. 428 (1989).
       10.  FEC v. Survival Education Fund, U.S. District Court 
     for the Southern District of New York, 1994 WL 9658 at *3 
     (1994).
       11.  Right to Life of Dutchess County v. FEC, U.S. District 
     Court for the Southern District of New York, 6 F. Supp. 2d 
     248 (1988).

[[Page S4284]]

       12.  Virginia Society for Human Life v. FEC, United States 
     District Court for the Eastern District of Virginia, 
     3:99CV559 (2000).

  Mr. McCONNELL. The list certainly does not contain all the cases 
where McDonald's views have been rejected by the Federal courts, but it 
should give Members on both sides of the aisle a sense for which 
nominee is truly out of step with the law, the courts, and the 
Constitution.
  I ask unanimous consent to print in the Record a copy of a letter 
from a first amendment lawyer, Manuel Klausner, who has been honored 
with the Lawyer of the Year award for the Los Angeles Bar Association. 
Mr. Klausner details serious concerns about Commissioner McDonald's 
voting record at the FEC.
  There being no objection, the letter was ordered to be printed in the 
Record, as follows:

                            Law Offices of Manuel S. Klausner,

                               Los Angeles, CA, February 29, 2000.
     Senator Mitch McConnell,
     Chairman, United States Senate Committee on Rules and 
         Administration, Senate Russell Bldg., Washington, DC.
       Dear Senator McConnell: I am an attorney in Los Angeles, 
     and my practice emphasizes First Amendment, election law and 
     civil rights litigation. By way of background, I am a 
     founding editor of REASON Magazine and a trustee of the 
     Reason Foundation. I serve as general counsel to the 
     Individual Rights Foundation. This letter is written on my 
     own behalf, and is not intended to reflect the views of 
     Reason Foundation or the Individual Rights Foundation.
       I was formerly a 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 and election law issues at law schools and 
     conferences in the United States and Europe.
       As an attorney well versed in the First Amendment, I am 
     writing to urge you to reject the nomination of Danny Lee 
     McDonald to the Federal Election Commission.
       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. This has resulted in the FEC 
     having the worst litigation record of any major government 
     agency. It has also resulted in many citizens and citizen 
     groups being needlessly persecuted for exercising their First 
     Amendment rights. 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 
     impermissible 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 in 
     our constitutional system of government is illustrated by his 
     role in the FEC's ongoing efforts to expand the definition of 
     express advocacy. In Buckley v. Valeo, 424 U.S. 1, 44 (1976), 
     the Supreme Court ruled that the FECA could be applied 
     consistent with the First Amendment only if it were limited 
     to expenditures for communications that include words which, 
     in and of themselves, advocate the election or defeat of a 
     candidate. This clear categorical limit served a fundamental 
     purpose: It provided a way for people wishing to engage in 
     open and robust discussion of public issues to know ex ante 
     whether their speech was of a nature such that it had to 
     comply with the regulatory regime established by the FECA. 
     The Court did not want people to have their core First 
     Amendment right to engage in discussion of public issues 
     (even those intimately tied to public officials) burdened by 
     the apprehension that, at some time in the future, their 
     speech might be interpreted by the government as advocating 
     the election of a particular candidate. Ten years after 
     Buckley, in FEC v. Massachusetts Citizens for Life, Inc., 479 
     U.S. 238 (1986), the Court reaffirmed the objective, bright-
     line express advocacy standard.
       Despite these clear,unequivocal precedents from the Supreme 
     Court regarding the bright-line, prophylactic standard for 
     express advocacy, it is my view that Commissioner McDonald 
     has flouted the rule of law. He has consistently supported 
     FEC enforcement actions and regulations that seek to 
     establish a broad, vague and subjective standard for express 
     advocacy. In doing so, Commissioner McDonald seeks to create 
     exactly the type of apprehension among speakers that the 
     First Amendment (as interpreted by the Supreme Court) 
     prohibits.
       After the 1992 presidential election, Commissioner McDonald 
     voted to pursue an enforcement action against the Christian 
     Action Newtwork (CAN) 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 CAN's advertisement ``did not 
     employ `explicit words,' `express words' or `language' 
     advocating the election or defeat of a particular candidate 
     for public office.'' FEC v. Christian Action Network, 110 
     F.3d 1049, 1050 (4th Cir. 1997). 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.'' Id. This was basically an effort to 
     blur the objective standard for express advocacy into a 
     vague, subjective ``totality of the circumstances'' test.
       The United States District Court for the Western District 
     of Virginia dismissed the FEC's complaint against CAN on the 
     grounds that it did not state a well-founded legal claim. FEC 
     v. Christian Action Network, 894 F. Supp. 946, 948 (1995). 
     This was because the agencies's subjective theory of express 
     advocacy was completely contrary to the bright-line standard 
     articulated in Buckley and MCFL. Id. After this stern rebuff 
     by the district court, Commissioner McDonald voted to appeal 
     the case to the United States Fourth Circuit Court of 
     Appeals. The Circuit Court summarily affirmed in a per curiam 
     opinion. FEC v. Christian Action Network, 92 F.3d 1178 (4th 
     Cir. 1996).
       The Christian Action Network subsequently asked the court 
     to order the FEC to pay the expenses it had incurred in 
     defending against the FEC's baseless lawsuit. The Fourth 
     Circuit ruled in CAN's favor, explaining that:
       ``In the face of unequivocal Supreme Court and other 
     authority discussed, an argument 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 attests), much less with `substantial 
     justification.' ''
       Commissioner McDonald's vote to authorize the CAN 
     litigation was unfortunate, because taxpayers ended up 
     footing the bill for CAN's defense of meritless litigation. 
     His vote was particularly disturbing, because the CAN case 
     was not the last time Commissioner McDonald voted to pursue 
     litigation based on an impermissibly broad and subjective 
     definition of express advocacy. See, e.g., FEC v. Freedom's 
     Heritage Forum, No. 3:98CV-549-S (W.D. Ky September 29, 
     1999). Sadly the CAN litigation did not cause Commissioner 
     McDonald to question his broad and subjective theory of 
     express advocacy. While the CAN case was being litigated, 
     Commissioner McDonald voted to enact a regulation that 
     defines express advocacy in exactly the same broad and 
     subjective terms that the courts have rejected. And despite 
     this regulation being declared unconstitutional on several 
     occasions, see, e.g., Maine Right to Life Committee v. FEC, 
     98 F.3d 1 (1st Cir. 1996), Commissioner McDonald has 
     repeatedly voted against amending the agency's definition of 
     express advocacy to comply with the law as declared by the 
     courts of the United States. Earlier this year, the United 
     States District Court for the Eastern District of Virginia 
     issued a nationwide injunction against the FEC's enforcement 
     of the broad and subjective definition of express advocacy 
     that Commissioner McDonald has consistently supported. 
     Virginia Society for Human Life, Inc. v. FEC, No. 
     3:99CV559 (E.D. Va. Jan. 4, 2000). Nevertheless, just a 
     few weeks ago, Commissioner McDonald voted against 
     reconsidering the agency's definition of express advocacy.
       It must be noted that Commissioner McDonald cannot 
     reasonably assert that his support for a broad and subjective 
     definition of express advocacy is grounded in the Ninth 
     Circuit's decision in FEC v. Furgatch, 807 F.2d 857 (9th Cir. 
     1987). As more than one court has made clear, Furgatch is an 
     inherently suspect decision because it does not discuss or 
     even mention the Supreme Court's ruling in MCFL, which was 
     decided a month before Furgatch. But, even to the extent 
     Furgatch is good law, the broad definition of express 
     advocacy that Commissioner McDonald consistently supports 
     goes beyond what even the Furgatch court permitted. The 
     Fourth Circuit has aptly summarized the discrepancy between 
     the broad FEC regulation defining express advocacy (which 
     Commissioner McDonald voted to approve) and the loose 
     definition used in Furgatch:
       ``It is plain that the FEC has simply selected certain 
     words or phrases from Furgatch that give the FEC the broadest 
     possible authority to regulate political speech * * * and 
     ignored those portions of Furgatch * * * which focus on the 
     words and text of the message.''
       Moreover, the FEC itself has acknowledged that its broad 
     definition of express advocacy is not fully supported by 
     Furgatch. In its brief in opposition to Supreme Court review 
     of Furgatch the FEC described as dicta the portions from 
     Furgatch that made their way into the agency's express 
     advocacy regulation. See FEC Brief in Opposition to 
     Certiorari in Furgatch at 7. And just last year in FEC Agenda 
     Document No. 99-40 at 2, the FEC's General Counsel conceded 
     that the broad view of express advocacy Commissioner McDonald 
     endorses is not completely supported by Furgatch, but only 
     ``largely based'' on Furgatch. In short, neither the courts 
     nor the FEC view Furgatch as fully justifying the definition 
     of express advocacy that Commissioner McDonald endorses.
       Unfortunately, the history of the FEC's express advocacy 
     rulemaking is just one of many examples I could proffer of 
     Commissioner McDonald's disregard for the Constitution and 
     the rule of law. By supporting the agency's willful efforts 
     to disregard the law as pronounced by the courts of the 
     United States, Commissioner McDonald has

[[Page S4285]]

     helped to create a situation in which an individual's First 
     Amendment rights vary--depending upon where they happen to 
     live in the United States. Of course, even people who reside 
     in regions of the country where the controlling court of 
     appeals has rejected the FEC's efforts to expand its 
     jurisdiction over political speech, are still chilled from 
     conveying their views on issues. After all, if they fund a 
     public communication that is broadcast into a neighboring 
     state that is in a federal circuit which has not ruled on the 
     FEC's novel theories, they may find themselves the test case 
     for that Circuit and be exposed to lengthy and costly 
     litigation.
       When federal agencies are allowed to create such a 
     patchwork system of speech regulation, public confidence in 
     the competence and integrity of the administrative state 
     declines. People come to feel that their rights extend no 
     further than the capricious whims of government bureaucrats.
       It is for Congress in its capacity as the body charged with 
     overseeing independent agencies to take the lead in remedying 
     such problems and reining in agencies that are out of 
     control. You can start reining in the FEC by making public 
     officials such as Commissioner McDonald accountable for 
     disregarding the rule of law and the constitutional rights of 
     citizens. By rejecting the nomination of Danny Lee McDonald, 
     Congress can signal that it will not tolerate FEC 
     Commissioners who arrogantly refuse to honor their oath to 
     uphold and defend the Constitution. By rejecting Danny Lee 
     McDonald--a man who has for almost twenty years demonstrated 
     contempt for the rights of ordinary Americans and the rulings 
     of federal courts--Congress can begin to restore confidence 
     that the Federal Election Commission will not continue to 
     trample on core First Amendment rights.
           Very truly yours,
                                               Manuel S. Klausner.

  Mr. McCONNELL. I think Commissioner McDonald's voting record has 
displayed a disregard for the law, the courts, and the Constitution. It 
has hurt the reputation of the Commission, chilled constitutionally 
protected political speech, and cost the taxpayers money.
  Equally troubling is the fact that Commissioner McDonald apparently 
chose to pursue the chairmanship of the Democratic National Committee 
while serving as a Commissioner to the Federal Election Commission.
  On August 22, 1997, the General Counsel to the Democratic National 
Committee, Joseph Sandler, testified under oath that it was his 
understanding that Commissioner McDonald had pursued the 
``chairmanship'' of the DNC in late 1996 or 1997. I must say I am very 
troubled by the fact that an FEC Commissioner, who is charged with 
displaying impartiality and good judgment, would seek the highest 
position in the Democratic National Committee while regulating the 
Democratic Party and its candidates and, I might add, while regulating 
the archrival of his party; that is, the Republican Party, and its 
candidates.
  As the distinguished Minority Leader stated in a floor speech on 
February 28 of this year:

       [The] law states that [FEC] Commissioners should be 
     ``chosen on the basis of their experience, integrity, 
     impartiality and good judgment.''

  I have serious questions about whether an FEC Commissioner exhibits 
``impartiality and good judgment'' when he seeks the highest position 
in his political party and simultaneously regulates that party and its 
candidates and regulates the competitor party and its candidates.
  All that being said, I am 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 
support Commissioner McDonald's nomination, assuming that McDonald's 
party grants similar latitude to the Republican choice.
  In fact, I believe it is the very presence of Commissioners such as 
Mr. McDonald who make Professor Smith all the more necessary at the 
FEC. The FEC needs Brad Smith's constitutional expertise to help 
prevent the string of unconstitutional FEC actions which McDonald 
supported. As Dean Kathleen Sullivan stated in support of Brad Smith:

       I think it is a good thing . . . to have people who are 
     very attuned to constitutional values in government 
     positions[.]

  So I say to my colleagues, I personally believe that Professor 
Smith's intelligence, his work ethic, his fairness, his knowledge of 
election law, and, to quote from the statute, his ``experience, 
integrity, impartiality and good judgment'' will be a tremendous asset 
to the FEC and to the American taxpayers who have been forced to pay 
for unconstitutional FEC actions.
  Professor Smith is a widely respected, prolific author on Federal 
election law and, in my opinion, the most qualified nominee in the 25-
year history of the Federal Election Commission. I am firmly convinced 
he would faithfully and impartially uphold the law and the Constitution 
as a Commissioner at the FEC, and I wholeheartedly support his 
nomination.
  In the words of the Wall Street Journal:

       This Mr. Smith should go to Washington.

  Mr. President, how much of my time do I have remaining?
  The PRESIDING OFFICER. The Senator has 60 minutes remaining.
  Mr. McCONNELL. I reserve the remainder of my time and yield the 
floor.
  The PRESIDING OFFICER. The Senator from Arizona.
  Mr. McCAIN. Mr. President, first let me remind my colleagues that Mr. 
Smith, in an article he wrote in the Wall Street Journal, concluded his 
article by saying:

       The most sensible reform is a simple one: repeal of the 
     Federal Elections Campaign Act.

  I ask unanimous consent that the entire article of Wednesday, March 
19, 1997, entitled ``Rule of Law, Why Campaign Finance Reform Never 
Works,'' by Bradley A. Smith, be printed in the Record.
  There being no objection, the article was ordered to be printed in 
the Record, as follows:

             [From the Wall Street Journal, Mar. 19, 1997]

                              Rule of Law

                Why Campaign Finance Reform Never Works

                         (By Bradley A. Smith)

       Think campaign finance reform isn't an incumbent's 
     protection racket? Just look at the spending limits included 
     in the Shays-Meehan and McCain-Feingld bills, the hot 
     ``reform'' bills on Capitol Hill.
       Shays-Meehan would limit spending in House races to 
     $600,000. In 1996, every House incumbent who spent less than 
     $500,000 won compared with only 3% of challengers who spent 
     that little. However, challengers who spent between 0,000 and 
     $1 million won 40% of the time while challengers who spent 
     more than $1 million won five of six races. The McCain-
     Feingold bill, which sets spending limits in Senate races, 
     would yield similar results. In both 1994 and 1996, every 
     challenger who spent less than its limits lost, but every 
     incumbent who did so won.
       This anecdotal evidence supports comprehensive statistical 
     analysis: The key spending variable is not incumbent 
     spending, or the ratio of incumbent to challenger spending, 
     but the absolute level of challenger spending. Incumbents 
     begin races with high name and issue recognition, so added 
     spending doesn't help them much. Challengers, however, need 
     to build that recognition. Once a challenger has spent enough 
     to achieve similar name and issue recognition, campaign 
     spending limits kick in. Meanwhile the incumbent is just 
     beginning to spend. In other words, just as a challenger 
     starts to become competitive, campaign spending limits choke 
     off political competition.
       This is not to suggest that the sponsors of McCain-Feingold 
     and Shays-Meehan sat down and tried to figure out how to 
     limit competition. However, when it comes to political 
     regulation and criticism of government, legislators have 
     strong vested interests that lead them to mistake what is 
     good for them with what is good for the country. Government 
     is inherently untrustworthy when it comes to regulating 
     political speech, and this tendency to use government power 
     to silence political criticism and stifle competition is a 
     major reason why we have the First Amendment.
       The Supreme Court has recognized the danger that campaign 
     finance regulation poses to freedom of speech, and for the 
     past 20 years, beginning with Buckley v. Valeo, has struck 
     down many proposed restrictions on political spending and 
     advocacy, including mandatory spending limits. Supporters of 
     campaign finance reform like to ridicule Buckley as equating 
     money with speech. In fact, Buckley did no such thing.
       Instead, Buckley recognized that limiting the amount of 
     money one can spend on political advocacy has the effect of 
     limiting speech. This is little more than common sense. For 
     example, the right to travel would lose much of its meaning 
     if we limited the amount that could be spent on any one trip 
     to $100.
       Shays-Meehan and McCain-Feingold are Congress's most 
     ambitious attempt yet to get around Buckley. The spending 
     limits in each bill are supposedly voluntary, so as to comply 
     with Buckley, but in fact the provisions are so coercive as 
     to be all but mandatory, which should make them 
     unconstitutional.
       For example, Shays-Meehan penalizes candidates who refuse 
     to limit spending by restricting their maximum contributions 
     to

[[Page S4286]]

     just $250, while allowing their opponents to collect 
     contributions of up to $2,000. Shays-Meehan also attempts to 
     get around Buckley by restricting the ability of individuals 
     to speak out on public issues. The bill would sharply limit 
     financial support for the discussion of political issues 
     where such discussion ``refers to a clearly identified 
     candidate.'' In Buckley, the Supreme Court struck down a 
     similar provision as unconstitutionally vague.
       Fueling the momentum to regulate ``issue advocacy'' is 
     Republican outrage over last year's advertising blitz by 
     organized labor attacking the Contract With America and the 
     GOP's stand on Social Security and Medicare. Even though the 
     AFL-CIO's ads were ostensibly about issues, there is no doubt 
     that they were aimed at helping Democrats regain control of 
     the House.
       Of course, the purpose of political campaigns is to discuss 
     issues; and the purpose of discussing issues it to influence 
     who holds office and what policies they pursue. Naturally, 
     candidates don't like to be criticized, especially when they 
     believe that the criticisms rely on distortion and 
     demagoguery. But the Founders recognized that government 
     cannot be trusted to determine what is ``fair or unfair'' 
     when it comes to political discussion. The First Amendment 
     isn't promise us speech we like, but the right to engage in 
     speech that others may not like.
       Recognizing that many proposed reforms run afoul of the 
     Constitution, some, such as former Sen. Bill Bradley and 
     current House Minority Leader Richard Gephardt, are calling 
     for a constitutional amendment that would, in effect, amend 
     the First Amendment to allow government to regulate political 
     speech more heavily. This seems odd, indeed, for while left 
     and right have often battled over the extent to which the 
     First Amendment covers commercial speech or pornography, 
     until now no one has ever seriously questioned that it should 
     cover political speech.
       If fact, constitutional or not, campaign finance reform has 
     turned out to be bad policy. For most of our history, 
     campaigns were essentially unregulated yet democracy survived 
     and flourished. However, since passage of the Federal 
     Elections Campaign Act and similar state laws, the influence 
     of special interests has grown, voter turnout has fallen, and 
     incumbents have become tougher to dislodge. Low contribution 
     limits have forced candidates to spend large amounts of time 
     seeking funds. Litigation has become a major campaign tactic, 
     with ordinary citizens hauled into court for passing out 
     homemade leaflets; and business and professional groups have 
     been restrained from communicating endorsements to their 
     dues-paying members.
       The reformers' response is that more regulation is needed. 
     If only the ``loopholes'' in the system could be closed, they 
     argue, it would work. Of course, some of today's biggest 
     loopholes were yesterday's reforms. Political action 
     committees were an early 1970s reform intended to increase 
     the influence of small donors. Now the McCain-Feingold bill 
     seeks to ban them. (Even the bill's sponsors seem to 
     recognize that this is probably unconstitutional--Sen. 
     Feingold boasts that in anticipation of such a finding by the 
     Supreme Court, the bill includes a fallback position.) Soft 
     money, which both bills would sharply curtail, was a 1979 
     reform intended to help parties engage in grasroots political 
     activity, such as get-out-the-vote drives.
       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 Elections 
     Campaign Act.

  Mr. McCAIN. He begins by saying:

       Think campaign finance reform isn't an incumbent's 
     protection racket? Just look at the spending limits included 
     in the Shays-Meehan and McCain-Feingold bills, the hot 
     ``reform'' bills on Capitol Hill.

  I will provide for the Record that as increases in spending have gone 
up, they have favored the incumbents, and more incumbents have been 
reelected over time. Mr. Smith is obviously wrong in his allegations as 
far as the facts are concerned. Then obviously he goes on to say at the 
end that campaign finance reform has turned out to be bad policy. He 
goes on to say:

       For most of our history campaigns were essentially 
     unregulated, yet democracy survived and flourished. However, 
     since passage of the Federal Elections Campaign Act and 
     similar State laws, the influence of special interests has 
     grown, voter turnout has fallen, and incumbents have become 
     tougher to dislodge.

  That is an interesting view of history.
  In 1974, we enacted campaign finance reform. The abuses of the 1972 
campaign were well known. They were extremely egregious and everyone 
knows there was a movement across America to clean up those incredible 
abuses that took place in the 1972 campaign. I guess what Mr. Smith 
either doesn't know or has ignored is that for a long period after 
campaign finance reform was enacted, there were better campaigns in 
America. They were a lot cleaner. They were more participatory.
  It was not until beginning in the middle to late 1980s, as smart 
people began to find loopholes, began to find ways around those 
campaign finance restrictions, that the influence of special interests 
grew, voter turnout fell, and incumbents became tougher to dislodge.

  I am a student of history. One of the reasons why I am is because it 
has a tendency to repeat itself. There was a period late in the last 
century, actually in the 19th century, when the robber barons took over 
American politics. That is a matter of history and disputed by very few 
historians. Fortunately, a man came to the fore in American politics by 
the name of Theodore Roosevelt. His words are as true today as they 
were then.
  I quote from his fifth annual message to the Congress, Washington, 
December 25, 1905:

       All contributions by corporations to any political 
     committee or for any political purpose should be forbidden by 
     law. Directors should not be permitted to use stockholders' 
     money for such purposes. And moreover, a prohibition of this 
     kind would be, as far as it went, an effective method of 
     stopping the evils aimed at the Incorrupt Practices Act.

  On October 26, 1904, Theodore Roosevelt made the following statement:

       I have just been informed that the Standard Oil people have 
     contributed $100,000 to our campaign fund. This may be 
     entirely untrue. But if true I must ask you to direct that 
     the money be returned to them forthwith. . . . Moreover, it 
     is entirely legitimate to accept campaign contributions, no 
     matter how large they are, from individuals and corporations 
     on the terms on which I happen to know that you have accepted 
     them; that is, with the explicit understanding that they were 
     given and received with no thought of any more obligation on 
     the part of the National Committee or of the national 
     administration than is implied in the statement that every 
     man shall receive a square deal, no more, no less, and that 
     this I shall guarantee him in any event to the best of my 
     ability. . . . But we cannot under any circumstances afford 
     to take a contribution which can be even improperly construed 
     as putting us under an improper obligation, and in view of my 
     past relations with the Standard Oil Company, I fear such a 
     construction will be put upon receiving any aid from them.

  On 1908, September 21, in a letter to the treasurer of the Republican 
National Committee, Theodore Roosevelt wrote:

       I have been informed that you, or someone on behalf of the 
     National Committee, have requested contributions both from 
     Mr. Archibold and Mr. Harriman. If this is true, I wish to 
     enter a most earnest protest, and to say that in my judgment 
     not only should such contributions not be solicited, but if 
     tendered, they should be refused; and if they have been 
     accepted they should immediately be returned. I am not the 
     candidate, but I am the head of the Republican 
     administration, which is an issue in this campaign, and I 
     protest earnestly against men whom we are prosecuting 
     being asked to contribute to elect a President who will 
     appoint an Attorney-General to continue these 
     prosecutions.

  Mr. President, in his State of the Union speech, President Roosevelt 
said on August 31, 1910:

       Now, this means that our Government, National and State, 
     must be freed from the sinister influence or control of 
     special interests. Exactly as the special interests of cotton 
     and slavery threatened our political integrity before the 
     Civil War, so now the great special business interests too 
     often control and corrupt the men and methods of government 
     for their own profit. We must drive the special interests out 
     of politics.

  Mr. President, as I said, Theodore Roosevelt's words in those days 
were as true then as they are today. I believe we are again in the same 
situation we were in before when he was able to get an all-out 
prohibition of corporate contributions to American political campaigns. 
That law is still on the books. That law has never been repealed.
  Why is it that tomorrow night there will be a fundraiser when 
individuals and corporations are allowed to contribute as much as 
$500,000 to enjoy the hospitality of the Democratic National Committee 
at the MCI Center? It is because the loopholes have been exploited. 
People such as our nominee, Mr. Smith, have made the process such that 
we can no longer expect the influence of special interests not to 
predominate here in our Nation's Capitol. Young Americans are tired of 
it. Young Americans are cynical, and they have become alienated.
  The nomination of Mr. Smith has not gone unnoticed beyond the 
beltway. The irony of his appointment to the FEC has been the subject 
of numerous editorials since the name first surfaced as a potential 
nominee. Let me read to you some of these editorials, Mr. President.

[[Page S4287]]

  The Palm Beach Post:

       You wouldn't put Charlton Heston in charge of gun control, 
     and you wouldn't put Bradley A. Smith in charge of enforcing 
     the nation's campaign-finance laws.
       Come to think of it, Republicans want to do both.
       Mr. Smith, a law professor in Ohio, feels about soft money 
     the way Mr. Heston feels about assault weapons: More is 
     better. . . . Mr. Smith has advocated the abolition of 
     Federal restrictions on campaign contributions. Yet, 
     Republicans want to nominate Mr. Smith to the Federal 
     Election Commission, which was founded in 1975 to enforce 
     campaign restrictions first imposed after Watergate. . . .
       The quote underpinning Mr. Smith's philosophy is, ``People 
     should be allowed to spend whatever they want on politics.'' 
     But when Mr. Smith talks about ``people,'' he means 
     corporations and unions and political-action committees--the 
     big donors who give with the all-too-realistic expectation 
     that they will receive favors from Congress in return.

  The story I quoted earlier from the New York Times mentioned that 
when the big donors were contacted by phone, they wanted to --guess 
what--talk about legislation before the Congress, for those who were 
soliciting donations.
  The San Francisco Chronicle, April 17:

       Seldom has the metaphor of the fox keeping watch over the 
     chicken coop seemed more apt. Bradley Smith has built his 
     career arguing that the 1974 Federal Election Campaign Act, 
     the law regulating campaign expenditures enacted after the 
     Watergate scandal, is unconstitutional and should be 
     abolished.
       In various articles, Mr. Smith, an obscure professor at 
     Capital University in Columbus, Ohio, has argued that our 
     nation only spends a ``minuscule amount'' on campaigns, a 
     mere .05 percent of our Gross National Product. Rather than 
     corrupting the process, Smith says campaign spending promotes 
     democracy by generating interest in candidates and issues. . 
     . . ``If anything, we probably spend too little,'' he wrote 
     in one of several guest columns for the Wall Street Journal.
       Smith might have remained little more than a professorial 
     provocateur behind the safe ramparts of the ivory tower had 
     not Republicans put forward his name to fill a vacant seat on 
     the Federal Election Commission, the body created by the very 
     law Smith thinks should be abolished.

  Washington Post, February 11, 2000:

       When the Supreme Court recently reaffirmed that reasonable 
     campaign finance regulations were constitutional, President 
     Clinton sought to portray himself as a fighter for reform. 
     ``For years, I challenged Congress to pass regulations that 
     would ban the raising of unregulated soft money and address 
     back door spending by outside organizations.'' He said, ``Now 
     I am again asking Congress to restore the American people's 
     faith in their democracy and pass real reform this year.'' 
     This week, however, the President nominated to the Federal 
     Election Commission a law professor, Bradley Smith, who not 
     only opposes further reform, but believes that most existing 
     campaign finance law violates the first amendment. Quite 
     simply, Mr. Smith doesn't believe in the bulk of the FEC's 
     work. Mr. Clinton has no business putting him in charge of 
     it.

  Mr. President, this is from the New York Times, February 17, 2000:

       A vote to confirm Mr. Smith is a vote to perpetuate big-
     money politics. Campaign restrictions are only as strong as 
     the FEC's interest in enforcing them--an interest Mr. Smith 
     plainly lacks. In an election year in which Washington's 
     failure to end the corrupt soft-money system has become a 
     rallying cause for John McCain's Presidential campaign, the 
     Senate should not seat someone on the FEC who questions the 
     need for change. Mr. Smith, as Mr. Gore aptly noted, 
     ``publicly questions not only the constitutionality of 
     proposed reform, but also the constitutionality of current 
     limitations.'' Mr. Smith does not belong on the FEC, and 
     anyone in the Senate who cares about fashioning a fair and 
     honest system for financing campaigns should vote against his 
     appointment.

  Mr. President, I don't want to put too much credence and importance 
on Mr. Smith's appointment. But I do not see, after the record is 
replete with Mr. Smith's views concerning campaign finance reform, how 
anyone in this body who is a sincere supporter of campaign finance 
reform could possibly have the remotest idea of voting for Mr. Smith.
  Finally, I have on this floor many times for too many years been 
arguing the constitutionality of placing limitations on campaign 
contributions.
  The opponents, time after time, have taken the floor and said: Well, 
Buckley v. Valeo was only a 5-4 vote, a footnote, which perhaps has 
become one of the most famous footnotes in the history of any Supreme 
Court decision concerning exactly what the words are both for and 
against. Over time, for reasons that are not clear to me, the opponents 
of campaign finance reform raise the concern in many people's minds 
that the heart of McCain-Feingold is unconstitutional; in other words, 
the ability to place a limit on campaign contributions.
  I didn't quite understand that because in 1907 there was a law on the 
books that banned corporate contributions. That has never been 
repealed, nor declared unconstitutional. There is a law on the books in 
1947 banning union contributions to American political campaigns, and 
then of course there is the 1974 law.
  On January 24 of this year, Shrink Missouri clearly and unequivocally 
in a 6-3 decision upheld the $1,000 limitation on a campaign 
contribution.
  By limiting the size of the largest contributions, such restrictions 
are aimed at democratizing the influence money itself may bring to bear 
upon the electoral service.
  The U.S. Supreme Court, in a majority opinion, goes on to say that in 
doing so, they seek to build public confidence in that process and 
broaden the base of a candidate's meaningful financial support by 
encouraging the public participation in open discussion that the first 
amendment itself presupposes.
  Mr. Smith directly repudiates--and still does after the U.S. Supreme 
Court spoke unequivocally--a 6-3 decision by the U.S. Supreme Court. 
Yet my colleagues feel that he is fit to enforce a law that he directly 
repudiates.
  This is a bit Orwellian, Mr. President.
  The Court went on to say in unequivocal terms that the imposition of 
a $1,000 limit is certainly not only constitutional but should be 
constitutional because many of the Justices expressed their utter 
dismay at the state of campaign financing today in a rather forthright 
and candid manner, which is somewhat uncharacteristic of the U.S. 
Supreme Court. One of the Justices said, ``Money is not free speech. 
Money is property.''
  On the one hand, a decision to contribute money to a campaign is a 
matter of first amendment concern, not because money is speech; it is 
not, but because it enables speech through contributions. The 
contributor associates himself with a candidate's cause and helps the 
candidate communicate a political message with which the contributor 
agrees and helps the candidate win by attracting the votes of similarly 
minded voters. Both political association and political communications 
are at hand.
  On the other hand, restrictions upon the amount that any one 
individual can contribute to a particular candidate seek to protect the 
integrity of the electoral process, the means through which a free 
society democratically translates political speech into concrete 
government action.
  Moreover, by limiting the size of the largest contributions, such 
restrictions aim to democratize the influence money itself may bring to 
bear upon the electoral process.
  I don't mean to paraphrase the Supreme Court of the United States, 
but what they are saying is money in modest amounts is a way of 
participating in the political process, and it is a good and healthy 
thing.

  One of the great events in politics in the American Southwest is to 
have a barbecue and everyone pays $10, $15, or $20 to attend. You not 
only participate in the political process, but you have made an 
investment in that candidate.
  But when we are now at a point where $500,000 buys a ticket to a 
fundraiser, we have come a long way. We have come a long way. We have 
come to a Congress which is gridlocked by the special interests.
  If you want to look at our failure to enact a Patients' Bill of 
Rights, if you want to look at our failure to enact modest gun control 
such as safety locks and instant background checks, if you want to look 
at our failure to enact meaningful military reform because we continue 
to buy weapons systems which the military doesn't want or need, and we 
have 12,000 enlisted families on food stamps, you can look at a broad 
array of legislation that should have been acted on by any reasonable 
group of men and women who are elected to represent the people. 
Instead, it is the special interests.
  What is the message we are about to send to the American people when 
we affirm the appointment of Professor Brad Smith to the Federal 
Election Commission? We are saying that we are appointing a person for 
5 years who not only repudiates the decision of the U.S.

[[Page S4288]]

Supreme Court but believes that at no time in our history have we 
needed to clean up the abuses of the campaign finance system, and 
clearly has no interest in removing the incredible corruption that 
possesses the political process today, and is not interested in the 
fact that young Americans have become cynical and even alienated from 
the political process, to wit: The 1998 election where we had the 
lowest voter turnout in history of 18- to 26-year-olds.
  The message we are sending to America is: Americans, we are not ready 
yet to respond to the will of the people. We are still in the grips of 
special interests. Until we make their voices more clear and more 
strongly felt, the chances of reforming this system and returning the 
government to you is somewhat diminished.
  I know my colleague who is on the floor, Senator Feingold, and I will 
continue our efforts to bring McCain-Feingold and Shays-Meehan to the 
attention of this body for votes between now and when we go out of 
session. I don't know if we will be able to do that, but have no doubt 
about what we are trying to do and how we are trying to do it.
  All we ask for is a vote up or down. We will agree to 15 or 20 
minutes equally divided on both sides on this issue because it has been 
ventilated time after time on the floor of the Senate. For anyone who 
has some idea we are trying to hold up legislation or block 
legislation, all we are asking for is a vote. We know a majority of the 
Senate would vote in favor.
  I think we are going to do something very wrong tomorrow. We are 
probably going to affirm a person to an office in which the American 
people place some trust in the enforcement of existing law. That person 
has made it clear that he is not interested in enforcing existing law, 
and, in fact, he believes that existing law is unconstitutional.
  I think this is a very serious mistake. I hope the American people 
notice that this is something that will not work in their interests but 
will clearly work to maintain the status quo in our Nation's Capital.
  Mr. President, I reserve the remainder of my time.
  The PRESIDING OFFICER. The Senator from Wisconsin.
  Mr. FEINGOLD. Mr. President, although this, too, is an uphill battle, 
it is a good feeling to be on the floor again with my good friend, the 
Senator from Arizona, not only to fight this nomination, but also to 
signal the fact that we are ready to move forward on the campaign 
finance issue and a ban on soft money.
  I think the debate today has turned out to be not only a good chance 
to review the inappropriateness of the Bradley Smith nomination, but to 
review what has happened this year on the campaign finance front, 
particularly the decision by the U.S. Supreme Court in the Shrink 
Missouri case, and of course, more importantly, the tremendous profile 
the Senator from Arizona has given to the campaign finance issue 
through his courageous campaign for President.
  All of that is optimistic for the future. But today we have to 
continue the battle, as the Senator from Arizona has done, to try to 
prevent the Senate from making a terrible mistake with regard to the 
Federal Election Commission.
  In that regard, let me first elaborate on one item the Senator from 
Kentucky addressed. Earlier today, the Senator from Kentucky quoted 
from a number of letters from law professors, allegedly in support of 
the nomination of Professor Brad Smith. One of those letters was from 
Burt Neuborne, a professor at NYU Law School and Legal Director at the 
Brennan Center for Justice, somebody for whom I have tremendous regard 
and respect. The Senator from Kentucky took great pleasure in quoting 
that letter because the Brennan Center has been very effective and 
outspoken in its opposition to Professor Smith.
  I was a little surprised by the quote the Senator from Kentucky read 
from Professor Neuborne, although I noted that Professor Neuborne 
didn't seem to endorse Professor Smith for the FEC post in the portion 
of his letter the Senator from Kentucky read.
  In the interim, I asked my staff to look into the letter. Although we 
have not actually seen a copy, it seems the letter quoted by the 
Senator from Kentucky on the floor was actually a letter in support of 
Professor Smith's effort to get tenure at his law school a few years 
ago. I hope I don't need to point out, Mr. President, that there is a 
big difference between tenure at a law school and a seat on the FEC. 
Law professors can be and often are provocative, even outrageous, in 
their views, but FEC Commissioners have to enforce and interpret the 
law as intended by Congress. It is a very different job from being a 
professor.
  So I want the Record to be clear. Professor Neuborne's comments were 
quoted at least a bit out of context, and those comments had nothing to 
do with the decision that will soon be before the Senate on Professor 
Smith's nomination.
  Now let me say a bit more about the nomination and its relationship 
to the issue of soft money, which the Senator from Arizona was 
addressing moments ago. I spoke earlier about some of the views of Brad 
Smith on our current election laws. Now I want to talk about his views 
on the major reform issue that faces the Congress this year, the 
proposed ban on soft money.
  Professor Smith believes a ban such as the one contained in the 
McCain-Feingold bill would be unconstitutional. That is another reason 
I believe he should not be confirmed.
  We have had a number of debates on the issue of campaign finance 
reform in the last few years. They have been hard fought and sometimes 
illuminating. Particularly interesting to me, I have noticed very 
frequently the arguments of opponents of reform have changed over time. 
The first few times the McCain-Feingold bill was brought to the floor, 
much of the argument was against the spending limits and benefits 
contained in the original bill. We heard the cry of ``welfare for 
politicians,'' over and over.
  Then, when the bill was modified and spending limits for candidates 
were dropped, opponents of reform focused on provisions that would have 
restricted the use of unlimited corporate and union money to pay for 
phony issue ads that were really nothing more than campaign ads in 
disguise. Opponents complained that these provisions violated the first 
amendment. Then the accusation on this floor over and over again became 
that we reformers were the so-called ``speech police'' and the 
``enemies of free speech.''

  Last fall, however, Senator McCain and I decided to exclusively focus 
our attention on the worst loophole in the law, the problem that has 
undermined the whole of our Nation's election laws, the unlimited soft 
money contributions to the political parties. We found few, if any, 
opponents who were actually willing to come to the floor during the 
latest debate to continue to press some kind of a constitutional attack 
on this bill.
  The reason was very simple. There is no credible argument that a ban 
on soft money would be struck down by the Supreme Court. That view was 
supported by a letter to Senator McCain and to me from 126 legal 
scholars. It was seconded by a letter from every living former 
president, executive director, legal director, and legislative director 
of the American Civil Liberties Union. Even one of the strongest and 
most consistent opponents of reform in this body, the Senator from 
Washington, Mr. Gorton, conceded on the floor that a ban on soft money 
is probably constitutional. He even conceded that.
  Then we had the Supreme Court weighing in earlier this year in the 
Shrink Missouri case, reaffirming a portion of the Buckley decision 
that upheld contribution limits and stating in very strong and clear 
language that the Congress has the power to limit contributions to 
protect against actual or apparent corruption, the Court said:

       There 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, and I think in the view of any serious commentator on 
this subject, 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. That is the centerpiece of 
the reform bill that has passed the House and is now awaiting Senate 
action. It is simply not credible to argue

[[Page S4289]]

that this same Court that just a couple of months ago so strongly 
upheld the Missouri contribution limits would somehow completely change 
its jurisprudence and turn around and strike down an act of Congress 
that would outlaw soft money. It is simply not credible.
  But then there is Bradley Smith, the nominee before the Senate. In a 
paper for the Notre Dame Law School Journal of Legislation, published 
in 1998, he wrote the following:

       Regardless 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.

  Professor Smith makes the argument that since the parties use soft 
money to run phony issue ads and since phony issue ads are 
constitutionally protected, somehow a ban on soft money must be 
constitutionally suspect.
  The problem with this argument is that the justification for banning 
soft money has nothing to do with stopping the parties from running 
phony issue ads. The purpose of a soft money ban is to stop the erosion 
of public confidence in the political process that unlimited 
contributions from wealthy corporate, labor, and individual donors have 
caused--in other words, to put it in simple terms, terms that are not 
my own but those of the U.S. Supreme Court, to stop the appearance of 
corruption.
  Banning soft money is not about attacking speech, it is about 
attacking corruption. The parties can continue to run all the phony 
issue ads they want after soft money is banned; they will just have to 
use hard money to pay for those ads.
  Of course, Professor Smith doesn't agree that unlimited contributions 
can cause a corruption problem. But the Supreme Court most certainly 
does.
  A majority of this Senate has voted repeatedly in favor of a soft 
money ban. I cannot imagine that same majority will, tomorrow, vote to 
confirm a nominee who believes such a ban is unconstitutional. That is 
why the vote on Mr. Smith is not simply a vote on an executive branch 
nominee, it is a vote on campaign finance reform

  Here is the problem. If we succeed in passing a soft money ban this 
year, the FEC is going to have to promulgate regulations to implement 
that law. Numerous questions will undoubtedly arise on the mechanics of 
that ban. 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 that Mr. Smith will be able do that--how can 
he? It would be completely at odds with his own loudly professed 
principles. His view is that the whole exercise of prohibiting the 
parties from soliciting and receiving unlimited non-federal 
contributions is illegitimate.
  Shortly after his nomination, Mr. Smith was interviewed by the 
Capitol Hill newspaper, Roll Call. A story on February 14 of this year, 
stated as follows:

       But Smith said ``the reason most'' why he's agreed to take 
     the position is to ``present the case that there's another 
     way to talk about reform than reform being equivalent to more 
     regulation.''

  We are making a decision about putting someone on the Fec who is 
supposed to enforce the laws we pass. The purpose is not to send an 
advocate over to the FEC.
  That's right, this nominee most wants to be on the regulatory body in 
charge of administering the statutes that Congress passes in order to 
present the view that we do not need more regulation. Not to implement 
Congress's will in passing reform, but to show there is another way of 
talking about reform. I do not want that kind of Commissioner writing 
the regulations that will put the soft money ban of the McCain-Feingold 
bill into practice.
  I am not going to stand here and tell you that enactment of the 
McCain-Feingold bill is assured in this session of Congress. We have a 
lot of work still to do to convince enough of those who are now voting 
to permit a filibuster to block us to change their minds. But if you 
truly believe that soft money must be banished from our system, as you 
have voted so many times in the past few years, you must vote against 
the nomination of Brad Smith. Otherwise, you may very well be 
responsible for ineffective FEC enforcement of the ban which will let 
soft money back into the system, nullifying all that we have worked so 
hard to accomplish.
  The Senator from Kentucky began his presentation this morning by in 
essence asking for sympathy for Professor Smith because he has inspired 
such strong opposition both in the Senate and from outside 
commentators. He suggests that because the opposition is so heated that 
it must be distorted. And he quoted from law professors who have 
written in to defend Professor Smith and criticize the opposition to 
him. He said that from all that has been said about Professor Smith, 
one would think he has horns and a tail. I want to reiterate this 
because I think this approach the Senator from Kentucky has used is 
unfair to all of us who have opposed Professor Smith. Frankly, I think 
it is I unfair to Professor Smith.

  The opposition to Professor Smith is not personal. There is not a 
shred of a personal element to it and there never has been. It is based 
on his views, and in particular on his writings as a law professor and 
commentator on the election laws. The quotes I have called attention to 
today are not distortions, they are not taken out of context, they are 
not a caricature or a misrepresentation. These are Professor Smith's 
views, and he has reaffirmed them over and over again, including in the 
hearings held by the Rules Committee on his nomination. Yes, as we saw 
earlier, he has a beautiful family, and a beautiful dog, but that does 
not make his views on Federal election law any more acceptable to me or 
others who care about campaign finance reform.
  Professor Smith has not disavowed the views he expressed in his many 
writings on campaign finance. He simply asks us to take on faith his 
promise that notwithstanding those views he will enforce the law. But 
it is not that simple. Issues come before the FEC that are not as clear 
cut as ``will you enforce the law or not?''
  The FEC has to implement and administer the law. It has to promulgate 
regulations to cover complicated legal issue that come about because 
candidates and groups do their utmost to get around the law. It has to 
initiate investigations of suspicious activities, sometimes with great 
pressure brought by the parties to do nothing.
  I simply do not have confidence that an academic who holds the views 
expressed so clearly by Professor Smith will discharge his duties in a 
way that will uphold the spirit as well as the letter of the law.
  Let me also respond to the argument expressed by both the Chairman 
and the Ranking Member of the Rules Committee that his Senate is bound 
to rubber stamp the President's appointments because by tradition each 
party is entitled to choose the members of the Commission.
  First of all, I will say that I was very disappointed that President 
Clinton put forward this nomination. I expected more from a President 
who claims to support campaign finance reform. And I am pleased that 
Vice-President Gore has announced his opposition to the nomination of 
Professor Smith. I hope some day that we will have a President who will 
break with tradition--and that's all it is--tradition, and nominate 
independents or people who are not strongly identified with the parties 
to the FEC. I don't think the FEC or the country are well served by the 
kind of ``balanced'' Commission that we now have, where the Democratic 
and Republican Commissioners reliably line up on opposite sides of 
issues that have a partisan flavor, and line up in lock step together 
on issues that implicate the rights of third parties. I would like to 
see Commissioners on both sides who have an appreciation of the 
importance of the campaign finance laws and will vote to ensure 
fairness in elections.
  But until we have that kind of President, who is willing to stand up 
to the leadership of the parties, we still have the Senate's duty of 
Advice and Consent. Nowhere is it said in the Constitution that the 
power of Advice and Consent is any different for members of the FEC. 
Otherwise, why would we not just have the President nominate people and 
not have the Senate vote. It is an abdication of the Senate's duty, I 
believe, for us to give any less scrutiny to this nominee simply 
because it is paired with another nominee from the other party.

[[Page S4290]]

  The Senator from Kentucky also claimed that a nominee for a spot on 
the FEC has never been defeated on the floor, and that is true. But it 
is not true that the wishes of each of the parties has always been 
respected. In the mid-1980s, the Republican Party, under pressure from 
the National Right to Work Committee, blocked the reappointment of a 
Democratic Commissioner, Thomas Harris, because of his work as a lawyer 
representing unions. President Reagan refused to renominate Harris, and 
after a lengthy stalemate, another nominee was suggested.
  So much of the argument in favor of this nominee today has been based 
on this notion that to try to stop an FEC nomination is a complete 
break with precedent, that we have to simply rubberstamp this pairing 
of two FEC commissioners. The reality is contrary to the suggestion 
earlier today, the party of the Senator from Kentucky has not always 
acquiesced in the choice of the Democratic Party for its seats on the 
commission.
  Let me finally just dispel one misconception that I think some might 
have about the negotiations and agreements that led to this debate, 
which is clearly tied to various judicial and other nominations. There 
is no requirement here that Professor Smith's nomination be approved by 
the Senate in order for these other nominations to go forward. That is 
a misconception that some, particularly on our side, may believe. It is 
simply not the case with regard to the unanimous consent agreement and 
the negotiations between the majority leader and minority leader. In 
fact, it would be an abdication of our responsibility not to vote on 
the merits of this particular nominee regardless of the other 
nominations whose consideration was linked to the consideration of this 
nomination.
  With that I reserve the remainder of my time and I yield the floor.
  Mr. President, I ask the time be charged equally as I suggest the 
absence of a quorum.
  The PRESIDING OFFICER. Without objection, it is so ordered. The clerk 
will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. ALLARD. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                          ____________________