Congressional Record, Volume 146 Issue 65 (Tuesday, May 23, 2000)

[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

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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

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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:

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

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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.

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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

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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.

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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.

____________________