[Congressional Record Volume 146, Number 66 (Wednesday, May 24, 2000)]
[Senate]
[Pages S4359-S4364]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
[[Page S4359]]
EXECUTIVE SESSION
______
NOMINATION OF BRADLEY A. SMITH, OF OHIO, TO BE A MEMBER OF THE FEDERAL
ELECTION COMMISSION--Resumed
The PRESIDING OFFICER. The Senate will now proceed to executive
session, and the clerk will report the nomination.
The legislative clerk read the nomination of Bradley A. Smith, of
Ohio, to be a member of the Federal Election Commission.
Mr. FEINGOLD. Mr. President, it is my understanding under the
unanimous consent agreement I am allotted 10 minutes.
The PRESIDING OFFICER. The Senator is correct.
Mr. FEINGOLD. Mr. President, I regret, even though this is the time
that has been allocated by unanimous consent for the final debate on
the nominations, particularly the nomination of Brad Smith, I regret
there are no other Senators here to debate the nomination. However, I
will proceed in any event because it is an important nomination, an
important issue.
There is an irony about the vote we are about to have in the Senate.
The Senate is sure to close up shop at a reasonable hour today. Why?
Because tonight the Democratic Party will host the largest fund-raiser
in history at the MCI Center here in Washington. The party expects to
rake in $24 million in one night, tonight. And this will surpass the
previous record for a single fund-raiser of $21.3 million set less than
1 month ago by the Republican Party. That record fundraiser swamped the
previous record, also held by the Republican Party, at an event a year
earlier, of $14 million.
We are in an arms race. The escalation is truly staggering. The
insatiable need for bigger and bigger checks is turning our great
political parties into little more than fundraiser machines. Forty-
seven donors raised or contributed $250,000 or more to go to the
fundraiser tonight that my party will hold. Back in April, 45 donors
raised or contributed that amount to join the Republican Party leaders
at the National Armory. A quarter of a million dollars. Can anyone
honestly say the donors who give that money will get no special
treatment in return? We all know this money can be corrupting. It
certainly provides the appearance of corruption.
The Supreme Court knows that contributions of this size can be
corrupting. Let me quote the Court, once again, from the Shrink
Missouri case decided a few months ago:
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.
There is little reason to doubt the corrupting influence of large
contributions on our political system, said the Court.
At least one person doubts this. Professor Bradley Smith doubts it.
Listen to what he wrote in a 1997 Law Review article: Whatever the
particulars of reform proposes, it is increasingly clear that reformers
have overstated the Government interest in the anticorruption
rationale. Money's alleged corrupting effects are far from proven,
Professor Smith says.
Brad Smith sees nothing wrong with unlimited contributions to parties
or even to candidates. He said in a newspaper article that ``people
should be allowed to spend whatever they want on politics.'' In an
interview on MSNBC he said: ``I think we should deregulate and just let
it go. That is how our politics was run for over 100 years.''
That ``100 years'' he is referring to is the 19th century. That is
the world Brad Smith would like to see; no contribution is too big for
us to tolerate in the world he sees.
I assure my colleagues that this is not some caricature of this
nominee's views. These are not distortions nor are they words taken out
of context. This is what this nominee believes. This is what he has
said over and over and over again, including at his confirmation
hearing before the Rules Committee. Brad Smith sees nothing wrong with
the enormous soft money contributions that both parties are so greedily
seeking, the kind of contributions my party will rake in, in the
largest fundraiser in history, tonight, just a few hours from now. Not
only that, he believes to ban soft money would violate the first
amendment of the Constitution.
Virtually no one still clings to that belief in the wake of the
Supreme Court's decision in the Shrink Missouri case. Brad Smith does.
This nomination may be just as important to the cause of campaign
finance reform as any bill that has been before the Senate in recent
years. This vote on this nomination is just as significant for campaign
finance reform as many of the votes we have had on those bills. I
submit to those Senators who have voted time and time again to ban soft
money--and I do thank them for their votes, and I thank them for their
support of the McCain-Feingold bill--those Senators should think very
carefully about what they are doing here.
To confirm Brad Smith to a seat on the FEC is to confirm a man whose
most deeply held beliefs about the Federal election system are wholly
at odds with the reforms we are seeking. If we somehow are able to get
past the filibuster and pass a soft money ban this year, Brad Smith
will be on the Commission that is charged by law with the duty to
implementing that ban.
I emphasize again I hold absolutely no personal animus toward Mr.
Smith. This is not personal. It is not a matter of personality. I do
not question Mr. Smith's integrity. I do not question his honesty. I
certainly do not question his right to criticize the laws from outside
his perch as a law professor and commentator. However, his views on the
very laws he will be called to enforce scare me. It is simply not
possible for me to ignore the views he has repeatedly and stridently
expressed simply because he now claims he will faithfully execute the
laws if he is confirmed. He may try to do that, but in matters of
interpretation he will certainly come down on the side of big money in
campaigns every time.
In a 1997 opinion piece in the Wall Street Journal, Mr. Smith wrote
the following:
When a law is in need of continual revision to close a
series of ever-changing ``loopholes,'' it is probably the
law, and not the people, that is in error. Most sensible
reform is a simple one: Repeal of the Federal Elections
Campaign Act.
I cannot in good conscience vote to confirm a man to the FEC who
believes the statute that created that body should be scrapped. I urge
my colleagues to think about this very hard. Professor Smith's views
are not anywhere near the mainstream of legal thought on this issue.
Professor Smith may be a wonderful professor and scholar, but he should
not be on the Federal Election Commission.
I reserve the remainder of my time.
Mr. KOHL. Mr. President, I have serious concerns about confirming
Bradley Smith to fill a vacancy on the Federal Election Commission or
the FEC. The FEC is an independent regulatory agency entrusted with
administering and enforcing the Nation's campaign finance laws. Yet,
Bradley Smith believes that the very campaign finance laws he would be
required to administer and enforce should be thrown out.
I am not questioning the integrity of this nominee or his fitness for
government service in general. I also believe we must be careful not to
reject nominees just because we object to their views. However, when a
person like Bradley Smith is put forward, a person whose views seem to
undermine the very purpose for which he is being nominated, I believe
we have a responsibility to speak out. Bradley Smith is not an
appropriate choice for FEC commissioner and I will be voting against
this nomination.
Mr. LEVIN. Mr. President, I will be voting today against the
nomination of Mr. Bradley Smith to serve as a Commissioner of the
Federal Election Commission. It is with a fair amount of reluctance
that I take this position, given the longstanding custom of allowing
each party to appoint its own choices to this six member commission and
the fact that FEC nominees are, by statute, supposed to be the
representatives of their political parties on that commission. I
respect that history.
I also believe Mr. Smith is a man of intelligence, integrity, and
competence. So, my vote against his nomination is not a vote against
him as a person. Nor will I vote against him because I disagree
strongly with most of Mr. Smith's opinions on the campaign
[[Page S4360]]
finance system. He favors no contribution limits; I think they are
essential. He doesn't see a link between corruption or the appearance
of corruption and the contributions made to candidates and holders of
public office; I do. He thinks the Federal Election Campaign Act and
the Federal Election Commission should be dismantled; I don't.
The reason I will vote ``no'' is because I cannot support the
nomination of an individual to the position of commissioner of an
agency which the nominee doesn't think should exist or which has as its
operating statute one which the nominee thinks should be repealed. I do
not relish voting against this nominee to the FEC offered by the
Republican leadership but Mr. Smith's opposition to the existence of
the institution to which he is being nominated compels me to vote
against him.
Mr. McCONNELL. Mr. President, I rise today in support of the
nomination of Professor Bradley A. Smith to fill the open Republican
seat on the bipartisan Federal Election Commission. In considering the
two FEC nominees, Professor Brad Smith and Commissioner Danny McDonald,
the Senate must answer two fundamental questions:
Is each nominee experienced, principled and ethical? And,
Will the FEC continue to be a balanced, bipartisan commission?
I want to take a minute to rebut some of the myths that have been
perpetuated by the reform groups over the past several months.
Myth No. 1: Professor Smith's First Amendment views are radical and
disqualify him for government service at a bipartisan agency.
Over 30 renowned First Amendment and Election Law experts, including
past members of the governing Board of Common Cause, urge Brad Smith's
confirmation and attest to the validity of Brad Smith's actual views--
that is distinguished from the views that have been attributed to him
by his critics.
Moreover, these renowned scholars are indignant about the
misrepresentation of Smith's scholarship. Let me share just a few
examples:
First Amendment Scholar Michael McConnell of the University of Utah
Law School writes:
[S]ome opponents of the nomination of Bradley A. Smith to
the Federal Elections Commission are claiming his scholarly
writings regarding the First Amendment and campaign finance
laws are irresponsible or otherwise beyond the pale. This is
simply partisan nonsense. * * * The merits of his nomination
should not be clouded by charges of this sort, which have no
scholarly validity.
Professor Daniel Kobil, a former governing Board Member of Common
Cause in Ohio writes:
I believe that * * * [the] opposition is based not on what
Brad has written or said about campaign finance regulations,
but on crude caricatures of his ideas that have been
circulated.
Even one of the scholars who support McCain-Feingold has written in
support of Professor Smith's nomination. Professor Jamin Raskin, a
signatory to the McCain-Feingold letter, writes:
The political reform community would actually be better off
with Smith on the FEC. * * * Smith is no party hack, but a
serious scholar who cares about political liberty. * * * He
is a dream candidate * * * [who] should not be opposed by
political reformers.
In fact, Smith's views on election law are shared by many fine
scholars, like Kathleen Sullivan, the Dean of Stanford Law School, who
praised Smith stating:
I do think Mr. Smith's views are in the mainstream of
constitutional opinion. I like to think that I am enough in
the mainstream of constitutional opinion that our agreement
on many points would place us both there.
Let me paraphrase Dean Sullivan to rebut those who argue that
appointing Brad Smith is like appointing a conscientious objector to be
Secretary of Defense: appointing a First Amendment election law scholar
to the FEC is, in fact, like appointing a seasoned U.S. Attorney who
values the constitutional liberties of every American citizen.
Or what about 46 political scientists who echo Smith and Sullivan's
concerns about the current campaign finance laws and some of the
proposed reforms? I ask unanimous consent that a letter be printed in
the Record at the conclusion of my remarks. It is signed by 46
political scientists, including esteemed scholars like Brandice Canes
of MIT, Michael Munger of Duke, Patrick Lynch of Georgetown, and--from
the flagship university in Arizona--University of Arizona professors
Price Fishback and Vernon Smith.
The PRESIDING OFFICER. Without objection, it is so ordered.
(See Exhibit 1.)
Mr. McCONNELL. Would my colleagues on the other side vote to reject
all of these individuals, including the Dean of Stanford Law School,
who have questioned the wisdom and workability of our campaign finance
laws and the proposed reforms?
Myth No. 2: Professor Smith fails to acknowledge the Supreme Court's
recent decision in Shrink-Pac.
As for this assertion, I would direct my colleagues to pages 20, 31,
36 and 40 of the published Rules Committee hearing report from March 8
of this year. Professor Smith clearly acknowledged the holding of the
Shrink PAC decision, and, in particular explained:
Had I been on the Commission and the case had come forward
under Federal law . . . I would have had no problem voting
for [the] enforcement action . . . .
Of course, the reform groups won't tell you that the Supreme Court
agreed with Smith's views and declared campaign finance laws
unconstitutional in cases such as Colorado Republican, and McIntyre v.
Ohio, and just last year in Buckley v. American Constitutional Law
Foundation, or that, as Professor Nagle of Notre Dame Law School has
written: Smith's ``understanding of the First Amendment has been
adopted by courts in sustaining state campaign finance laws.''
Myth No. 3: Professor Smith will not enforce the law.
The letter of Dan Lowenstein of UCLA Law School, a 6 year member of
the national governing Board of Common Cause rebuts this myth. He
writes:
[Smith] will understand that his job is to enforce the law,
even when he does not agree with it. I doubt if anyone can
credibly deny that [Smith] is an individual of high
intelligence and energy and unquestioned integrity. When such
an individual is nominated for the FEC, he or she should be
enthusiastically and quickly confirmed by the Senate.
Let me address the Democrats' nominee, Commissioner Danny McDonald.
Commissioner McDonald and I are clearly in different campaign reform
camps. If I follow the new litmus test that is being put forth by some
in this confirmation debate, then I have no choice but to vigorously
oppose his nomination.
I want to be clear that Danny McDonald is not my choice for the
Federal Election Commission. I have serious questions about his 18-year
track record at the FEC. McDonald's views and actions have been soundly
rejected by the federal courts in dozens of cases.
Two of these cases even 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.'' And, just this month, the
10th Circuit struck down yet another FEC enforcement action as
unconstitutional--finding, I might add, that reformer concerns of
corruption were unsubstantiated.
I think Commissioner McDonald's voting record has displayed a
disregard for the law, the courts and the Constitution. And, 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.
I must say that 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 of that being said, I am prepared to reject this new litmus test
whereby we ``Bork'' nominations to this bipartisan panel. 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 Republicans' choice, Professor
Smith, which will be voted on first.
As an aside, let me say to my distinguished colleague from Arizona
and my distinguished colleague from Wisconsin: even though we are in
different
[[Page S4361]]
campaign reform camps and even though we famously disagree on the First
Amendment and federal election law, I would wholeheartedly support
either of you to serve as the Democrat's nominee to the Federal
Election Commission.
I urge my colleagues to also reject this new litmus test of barring
government service for those who question Congress and its laws.
Harvard Law professor and former solicitor general of the United
States, Charles Fried, has summed up this point. This is what Solicitor
Fried had to say:
I address . . . the proposition that because [Professor
Smith] has been critical of the Commission to which he has
been nominated and some of the laws which it administers he
is somehow disqualified for confirmation to the post of
Commissioner. This argument is not only dangerous, but so
far-fetched, so out of line with historic practice, that it
is hard to believe it is not being deployed strategically
only, and that those who urge it in this case would not
repeat it were they more in sympathy with the nominee or his
philosophical orientation. . ..
[I]f these arguments against Mr. Smith should prevail it
would have two dangerous consequences. It would limit more
and more the administration of laws to zealots. And it would
inhibit robust debate about the wisdom of laws, by using
views expressed in such debates as weapons used deny the
opportunity for public service on the basis of those views.
The first danger would give us an administration of zealots;
the second an administration of malleable non-entities.
In conclusion, I 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 and prolific author on federal
election law, and, in my opinion, the most qualified nominee in the
twenty-five year history of the Federal Election Commission. I
wholeheartedly support his nomination to the bipartisan Federal
Election Commission.
I yield the floor.
Exhibit 1
Duke University,
Durham, NC, April 1, 2000.
Senator Mitch McConnell,
Chairman, U.S. Senate Committee on Rules and Administration,
Washington, DC.
Dear Senator McConnell: I have found that one of the main
principles of political sciences is that power, like nature,
abhors a vacuum. The current reform measures being considered
by the Congress, including the McCain-Feingold bill on
campaign finance and ``soft money'' regulation, will have the
opposite of their intended effects, which (apparently) is the
restriction of the power of special interests. The problem is
that weakening parties always increases the power of interest
groups.
This opinion is widely held among social scientists, but
the fact that so many people recognize the danger of
legislation is not often recognized. As a way of bringing
this fact to public notice, I have solicited the signatures
of colleagues on the attached latter. Forty-five
distinguished scholars of the political process, including
six past Presidents of the Public Choice Society, have asked
that I list their names as supporters. This I have done, and
offer the attached open letter as a means of ensuring that
the dangers of wrong-headed reforms can be prevented.
Sincerely,
Michael C. Munger,
Professor of Political Science.
Scholars' Letter to Congress: Why Campaign Finance ``Reform'' Is Ill-
Advised and Will Not Work
Senator Mitch McConnell,
Chairman, Senate Rules Committee.
Dear Senator McConnell and Members of Congress:
Restrictions on campaign donations or expenditures do little
to limit the total amount spent on campaign and make
campaigns less competitive. Such rules entrench incumbents,
force donations to take hidden forms, increase corruption
through such mechanisms as ``straw donations,'' and make it
more likely that wealthy candidates will win election.
Campaign finance restrictions are similar to price controls
that deal with the symptoms rather than the reasons for the
donations and are likewise doomed to fail. With campaign
financing amounting to less than one-tenth of one percent of
government expenditures, campaign spending does not seem
large in either an absolute sense or relative to other
product advertising. The restrictions force campaign
expenditures to be spent in less effective ways and actually
leave voters less well informed.
The McCain/Fiengold bill's provisions on parties making
independent and coordinated expenditures on behalf of
candidates, and prohibitions on issue advocacy that refers to
a candidate, as well as restrictions on raising or spending
``soft money'' in connection with elections are typical of
the rules that produce these problems. So called
``voluntary'' limits that restrict who can help certain
candidates who violate certain rules are anything but
voluntary.
The different forms contributions can take are essentially
infinite and this makes regulation exceptionally difficult.
For example, in the extreme case, it would be possible to buy
up television and radio stations or newspapers to support
particular candidates. Providing favorable new coverage for
desired candidates would certainly benefit their candidacy,
but it is difficult to see how these kinds of ``in-kind''
donations would be regulated.
We advise Congress, before enacting yet more new laws, to
investigate whether many of the existing laws may have
contributed to the problems we currently face. The new
legislation is ill-advised.
Sincerely,
Professor Brandice Canes, Department of Political Science,
Massachusetts Institute of Technology.
Professor William Fischel, Department of Economics,
Dartmouth College.
Professor Michael Munger, Department of Political Science,
Duke University.
Professor G. Patrick Lynch, Department of Government,
Georgetown University.
Professor Jeffrey Milyo, Department of Economics, Tufts
University.
Professor Otto Davis, W.W. Cooper University Professor of
Economics and Public Policy, Carnegie Mellon University.
Professor John Matsusaka, Department of Finance and
Business Economics, Marshall School of Business, University
of Southern California.
Professor Price Fishback, Frank and Clara Kramer Professor
of Economics, University of Arizona.
Professor Keith Poole, Professor of Political Economy,
Research Director of the Donald H. Jones, Center for
Entrepreneurship, Carnegie Mellon University.
Professor Vernon Smith, Regents' Professor of Economics,
University of Arizona.
Professor Brian Roberts, Department of Government, The
University of Texas at Austin.
Professor John Danford, Department of Political Science,
Loyola University--Chicago.
Professor John R. Lott, Yale Law School.
Professor Joe Reid, Department of Economics, George Mason
University.
Professor Mark Toma, Department of Economics, Unversity of
Kentucky.
Professor Robert Tollison, Robert M. Hearin Professor of
Economics, University of Mississippi.
Professor Daniel Sutter, Department of Economics,
University of Oklahoma.
Jeffrey Jenkins, Department of Political Science, Michigan
State University.
Professor Brian Gaines, Department of Political Science,
University of Illinois.
Professor Jay Dow, Department of Political Science,
University of Missouri.
Professor Geoffrey T. Andron, Department of Economics,
Huston-Tillotson College.
Professor John Scott, Department of Economics, Northwest
Louisiana University.
Professor Mathew McCubbins, Department of Political
Science, University of California San Diego.
Professor Melvin Hinich, Mike Hogg Professor of State and
Local Government, The University of Texas at Austin.
Professor Burton Abrams, Department of Economics,
University of Delaware.
Professor Adam Gifford, Jr., Chairman, Department of
Economics, California State University, Northridge.
Professor William Shugart, Barnard Distinguished Professor
of Economics, University of Mississippi.
Professor Dean Lacy, Department of Political Science, The
Ohio State University.
Professor Mark Crain, Center for the Study of Public
Choice, George Mason University.
Professor Peter Calgano, Department of Economics, Wingate
University.
Professor Chris Paul, Department of Economics, Armstrong
Atlantic State University.
Professor Peter Ordershook, Division of Humanities and
Social Sciences, California Institute of Technology.
Professor Gary Anderson, Department of Economics,
California State University, Northridge.
Professor Mikhail Filipov, Department of Political Science,
Washington University--St. Louis.
Professor Arthur Fleisher III, Department of Economics,
Metropolitan State College of Denver.
Professor Steve Knack, Center for Institutional Reform,
University of Maryland.
Professor Randy Simons, Director, Institute of Political
Economy, Utah State University.
Professor Randall Holcombe, Department of Economics,
Florida State University.
Professor Thomas Borcherding, Department of Economics,
Claremont Graduate University.
Professor Dennis Halcoussis, Department of Economics,
California State University, Northridge.
Professor James Endersby, Department of Political Science,
University of Missouri.
Professor Brian Sala, Department of Political Science,
University of Illinois.
Professor Elizabeth Gerber, Department of Political
Science, University of California, San Diego.
Professor William Kaempfer, Department of Economics,
University of Colorado at Boulder.
Professor Paul Zak, Department of Economics, Claremont
Graduate University.
[[Page S4362]]
Professor Charles Rowley, Department of Economics, George
Mason University.
Mr. McCONNELL. I yield the floor.
The PRESIDING OFFICER. The Senator from Wisconsin.
Mr. FEINGOLD. Mr. President, in the brief time I have remaining, I
want to quickly respond to some of the remarks of the Senator from
Kentucky.
First of all, the suggestion that the arguments on this side have
relied on a caricature of the views of the nominee is simply false. We
have been very cautious in the debate to simply rely on Professor
Smith's actual words from his voluminous writings, and the Senator from
Kentucky in no instance has denied that we accurately quoted Professor
Smith. These are his views. There has been no distortion and no
caricaturing of his views.
Second, the Senator denies the nominee's views on the campaign
finance law will affect his ability to discharge his duties as an FEC
Commissioner. Of course, I do not believe that people involved in the
enforcment of laws have to accept the premise of every single law they
are charged to enforce, but this nominee rejects essentially the entire
campaign finance law of our country, from the notion dating back to
1907, that is still supposed to be good law today, that a corporation
should not be able to give contributions in connection with federal
elections, to the notion that labor unions should not be able to make
such contributions, according to a 1947 law, to his rejection of the
fundamental post-Watergate laws restricting the amounts that
individuals can give candidates and parties that we are supposed to
live under today. Professor Smith is essentially a campaign finance law
anarchist. He does not believe we should have any campaign finance law.
The notion that such a person should be on the FEC makes virtually no
sense. To take the analogy of the Senator from Kentucky, he says having
Professor Smith on the Commission will be like having a prosecutor who
cares very much about people's constitutional rights. But the real
analogy is that this nominee would be a prosecutor who believes we
should repeal just about all of the U.S. Criminal Code. That, to me, is
too much.
This is not about a litmus test. This is absolutely not about barring
this gentleman from public service, as the Senator from Kentucky
suggests. If he wants to run for the Senate and pass laws about
campaign finance reform, there is an election for the Senate in Ohio
this year. He can run. But if his job is to enforce the main body of
campaign finance laws in this country, that job cannot be done by
someone who believes those laws are entirely inconsistent with the
first amendment and have no legal merit. Our election laws are too
important to put them at risk in this way. For those reasons, I hope my
colleagues reject this nomination.
The PRESIDING OFFICER. The Senator from Minnesota.
Mr. WELLSTONE. Mr. President, I ask unanimous consent that my time be
counted against the time allocated to the opposition.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. WELLSTONE. Mr. President, I will build on the comments of my
colleague from Wisconsin. I heard the Senator from Kentucky talk about
the fact that Brad Smith--and I said yesterday he is somebody I like
and enjoy being with--has been critical of the Federal election laws.
It is not just being critical. He has called the Federal Elections
Campaign Act unconstitutional and undemocratic. That is more than just
being critical.
I cannot remember a time when this body confirmed a nominee for any
executive position whose own views were so completely at odds with the
law he was meant to uphold.
Let me repeat that. That is what this debate is about. I cannot
remember a time when this body confirmed a nominee for any executive
position whose own views were so completely at odds with the law he was
meant to uphold. He believes the Federal election law is
unconstitutional and undemocratic.
I do not have the time today to summarize a complete position. I had
a chance yesterday to speak about this nominee. I say to my colleagues,
this vote is not just about Brad Smith; it is about whether or not the
Senate is committed to reform. I do not think we give people in the
country much confidence that we are committed to reform, that we are
committed to passing legislation which will get some of this big money
out of politics and which will lead to some authentic democracy as
opposed to just democracy for the few, when we then turn around and
confirm someone to the Federal Election Commission who does not even
believe in any of this campaign finance reform. The Senate would be
sending a terrible message to the country if we vote for this nominee.
I appreciate Brad Smith's right to express his views in writing and
in person. He is articulate, he is intelligent, but we have a situation
where we have a nominee who basically has said the Federal election
laws are undemocratic, that they are unconstitutional, basically
antithetical to all the values he holds dear about government and
democracy.
Why in the world would we then want to confirm such a nominee and put
him in a position of enforcing the very laws with which he is so at
odds? To me it is a huge mistake. This is a vote about reform. This is
a vote about Brad Smith. More importantly, it is a vote about whether
or not we are serious about reform and getting some of the money out of
politics and getting people back into politics.
I yield the floor.
The PRESIDING OFFICER. The Senator from Arizona.
Mr. McCAIN. Mr. President, I want to summarize the case against the
confirmation of Professor Smith to the FEC.
My colleague from Kentucky yesterday stated Mr. Smith has been
demonized. That is not true. I have criticized the nominee because I
strongly disagree with his view that ``The most sensible reform is a
simple one: repeal of the Federal Elections Campaign Act.''
I understand Professor Smith is not very old. In fact, Professor
Smith could not have read the history or known about the abuses that
took place in the 1972 campaign associated with the Watergate scandal
which brought about the modern Federal Elections Campaign Act.
I strongly disagree with his conclusion that ``campaign reform is not
about good government. It's about silencing people whose views are
inconvenient to those with power. . . .''
Professor Smith goes on to say--these are his words:
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 take strong exception to that view of history and the motivation of
those of us and millions of decent men and women, honest men and women,
who believe this situation needs to be cleaned up.
This morning's Washington Post has a story about ``MCI Center's Menu:
Ribs and a Record Democratic Fundraiser:
``There is no donor fatigue, no Clinton fatigue, no
Democratic fatigue,'' said an exhilarated Terence R.
McAuliffe, who made 200 calls a day for seven weeks for his
crowning achievement as Clinton's mean man in chief.
McAuliffe used four telephones at a time--three for aides
to dial, to put would-be donors on hold, and one for him to
coo into his headset, bringing home the big-dollar bacon.
The tribute has 21 vice chairs, who gave or raised
$250,000; 42 Friends, who gave $100,000; and 32 hosts, who
gave or raised $50,000. But what sets this dinner apart is
the altitude of the top donor tier--the co-chairs, who each
gave or raised $500,000.
There are 26 of them, including 10 labor unions.
The article goes on:
Another of the co-chairs is Senator Bob Kerrey (D-Neb.) who
is not seeking reelection and will become president of New
School University, in New York City. Kerrey said such efforts
renew his commitment to campaign finance reform. ``When
someone puts up half a million, you just cannot persuade
people that they aren't getting something for it.''
Senator Kerrey aptly described the situation that will take place at
the dinner at the MCI Center: ribs and a record Democratic fundraiser,
which is a record only because it exceeds the Republican fundraiser
that recently was held where $24 million was raised.
If on the floor of this body 10 years ago I said there were going to
be $500,000 donors, no one would give any credibility to that
statement.
[[Page S4363]]
The Supreme Court also disagrees with Mr. Smith. We seem to be
debating this issue of campaign finance reform and its validity in a
vacuum because neither the Senator from Kentucky nor Mr. Smith seem to
believe that, in January of the year 2000, the Court upheld Missouri
campaign contribution limitations in a 6-3 opinion. The Court rejected
Mr. Smith's premise that large contributions do not affect votes.
This is what Justice Souter wrote for the Court on the issue of the
constitutionality of contribution limits:
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 Congress could constitutionally address the
power of money ``to influence governmental actions'' in ways
less ``blatant and specific'' than bribery.
In defending its own statute, Missouri espouses those same
interests of preventing corruption and the appearance of it
that flowed from munificent campaign contributions. Even
without the authority of Buckley there would be no serious
question about the legitimacy of the interests claimed,
which, after all, underlie bribery and anti-gratuity
statutes. While neither law nor morals equate all political
contributions, without more, to bribes, we spoke in Buckley
of the perception of corruption ``inherent in a regime of
large individual financial contributions'' to candidates for
political office . . . as a source of concern almost equal to
``quid pro quo'' improbity. . . . 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. . . .''
Mr. President, the event tonight, I promise you, has aroused amongst
my constituents suspicions of malfeasance and corruption for any
objective observer of the political process.
Justice Stevens, in his concurring opinion said:
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.
Mr. President, we must consider this nomination, and the message it
sends to the people of this country, in light of the reality of this
year's campaign fundraising excesses.
Let me reiterate four points that summarize my opposition to Mr.
Smith's nomination to become an FEC Commissioner.
He has long advocated the repeal of campaign finance regulation. How
can he now take an oath to uphold and enforce the very laws he has so
long sought to eliminate altogether?
He has continually argued the unconstitutionality of restraints on
campaign finance regulation. His position has been that the Supreme
Court erred in its Buckley v. Valeo opinion which upheld restraints on
campaign contributions. Even as recently as his confirmation hearing in
March, after the Supreme Court had again upheld campaign contributions
limitations in the Missouri Shrink case, he neither acknowledged that
most recent pronouncement of the Supreme Court, nor changed his
viewpoint as to the constitutionality of contribution regulation. How
can he now agree to uphold and enforce laws and regulations which he
believes are unconstitutional?
Mr. President, I do not believe that we would confirm as EPA
Administrator someone who advocated the repeal of environmental laws. I
do not believe we would appoint an Attorney General who believes that
the criminal laws are unconstitutional or a conscientious objector to
be Secretary of Defense. Why should we confirm Mr. Smith as a
Commissioner for the FEC?
Although he acknowledges the campaign finance abuses of the 1996
election, he sees nothing wrong with giving free rein to such activity
by eliminating all campaign finance regulation.
If we would not conform as EPA Administrator someone who advocated
the repeal of the environmental laws, nor confirm an Attorney General
who believes that the criminal laws are unconstitutional, or a
conscientious objector as the Secretary of Defense, why would we
confirm Brad Smith as a Commissioner for the FEC?
Also in yesterday's debate, Senator McConnell raised questions about
the appropriateness of Danny McDonald, the choice of the Democrats as a
nominee, to serve on the FEC. I appreciate the concerns that my
colleague from Kentucky has raised. I totally concur that we should
apply the standards equally for nominees to these most important
positions. Based upon the issues Senator McConnell has raised, I will
rethink my position on Mr. McDonald, and vote against his confirmation
as well.
Mr. President, I cannot speak more directly or frankly against this
nominee. I urge my colleagues who have fought for campaign finance
reform--my colleagues who believe in the need for integrity in our
election system--to vote no on Brad Smith. As the New York Times said
earlier this year:
A vote to confirm Mr. Smith is a vote to perpetuate big-
money politics. . . . 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.
As chairman of the Commerce Committee, I have been involved with
moving more nominees that almost any other Member of this body. I have
allowed nominees to move forward, even when I disagreed with the
nominee. But, Mr. President, this case is different.
I do not expect to agree with all the views of those nominated. But
Mr. Smith's views are not just different from mine--again, a fact I
would respect--they are radically different from 100 years of court and
congressional precedence that some restrictions on campaign
contributions are necessary to ensure the integrity of this body and
the electoral process as a whole.
This is not just my opinion of the law. Let me read from Justice
Breyer's concurring opinion, in which Justice Ginsberg joined, in the
most recent pronouncement of the Supreme Court on campaign finance
regulation--the Shrink Missouri PAC case:
If the dissent believes that the Court diminishes the
importance of the first Amendment interests before us, it is
wrong. The court's opinion does not question the
constitutional importance of political speech or that its
protection lies at the heart of the First Amendment. Nor does
it question the need for particularly careful, precise, and
independent judicial review where, as here, that protection
is at issue. But this is a case where constitutionally
protected interests lie on both sides of the legal equation.
. . .
On the one hand, a decision to contribute money to a
campaign is a matter of First Amendment--not because the
money is speech (it is not); but because it enables speech.
Through contributions the contributor associates himself with
the candidates's cause, helps the candidate communicate a
political message with which the contributor agrees, and
helps the candidate win by attracting votes of similarly
minded voters. . . . both political association and political
communication are at stake. . . .
On the other hand, restrictions upon the amount 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 governmental action. . . .
Moreover, by limiting the size of the largest contributions,
such restrictions aim to democratize the influence that money
itself may bring to bear upon the electoral process . . . In
doing so, they seek to build public confidence in that
process and broaden the base of a candidate's meaningful
financial support, encouraging the public participation and
open discussion that the First Amendment itself presupposes.
Unfortunately, the views of this nominee make him unfit to serve on
the FEC. This is not, as I have stated, meant to be personal. I have
nothing against Mr. Smith personally. I am sure he is a fine
individual. But this body is constitutionally mandated to advise and
consent on nominations. I take that role extremely seriously. And as
such, I cannot support this nominee, and I urge my colleagues to do the
same.
[[Page S4364]]
Mr. President, I yield back the remainder of my time.
Mr. McCONNELL. Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant 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 (Mr. Crapo). Without objection, it is so
ordered.
Mr. McCONNELL. Mr. President, I ask unanimous consent that all
remaining time be yielded back on both sides.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. McCONNELL. Mr. President, I ask for the yeas and nays on the
Smith nomination.
The PRESIDING OFFICER. Is there a sufficient second?
There appears to be a sufficient second.
The question is, Will the Senate advise and consent to the nomination
of Bradley A. Smith, of Ohio, to be a Member of the Federal Election
Commission? On this question the yeas and nays have been ordered, and
the clerk will call the roll.
The assistant legislative clerk called the roll.
Mr. REID. I announce that the Senator from Delaware (Mr. Biden) is
necessarily absent.
The PRESIDING OFFICER. Are there any other Senators in the Chamber
desiring to vote?
The result was announced--yeas 64, nays 35, as follows:
[Rollcall Vote No. 107 Ex.]
YEAS--64
Abraham
Allard
Ashcroft
Baucus
Bennett
Bond
Breaux
Brownback
Bryan
Bunning
Burns
Campbell
Chafee, L.
Cochran
Collins
Coverdell
Craig
Crapo
DeWine
Dodd
Domenici
Enzi
Fitzgerald
Frist
Gorton
Graham
Gramm
Grams
Grassley
Gregg
Hagel
Hatch
Helms
Hutchinson
Hutchison
Inhofe
Inouye
Jeffords
Kyl
Leahy
Lott
Lugar
Mack
McConnell
Moynihan
Murkowski
Nickles
Reid
Roberts
Roth
Santorum
Sessions
Shelby
Smith (NH)
Smith (OR)
Snowe
Specter
Stevens
Thomas
Thompson
Thurmond
Torricelli
Voinovich
Warner
NAYS--35
Akaka
Bayh
Bingaman
Boxer
Byrd
Cleland
Conrad
Daschle
Dorgan
Durbin
Edwards
Feingold
Feinstein
Harkin
Hollings
Johnson
Kennedy
Kerrey
Kerry
Kohl
Landrieu
Lautenberg
Levin
Lieberman
Lincoln
McCain
Mikulski
Murray
Reed
Robb
Rockefeller
Sarbanes
Schumer
Wellstone
Wyden
NOT VOTING--1
Biden
The nomination was confirmed.
Mr. McCONNELL. Mr. President, I ask unanimous consent that the next
votes in this series be limited to 10 minutes each.
The PRESIDING OFFICER. Without objection, it is so ordered.
____________________