[Congressional Record (Bound Edition), Volume 146 (2000), Part 6]
[Senate]
[Pages 8769-8775]
[From the U.S. Government Publishing Office, www.gpo.gov]



                           EXECUTIVE SESSION

                                 ______
                                 

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

  The PRESIDING OFFICER. Under the previous order, the hour of 11:30 
a.m. having arrived, the Senate will proceed to executive session.
  The legislative clerk read the nomination of Bradley A. Smith, of 
Ohio, to be a member of the Federal Election Commission.
  Mr. McCONNELL. Mr. President, based on the caricatures of Professor 
Bradley Smith, one would think he must have horns and a tail. I unveil 
a picture of Brad Smith and his family in the hopes of putting to rest 
some of these rumors.
  Let me quote Professor Smith himself on this point, talking about the 
experience he has had over the last 10 months. He said: In the last 10 
months since my name first surfaced as a candidate, certain outside 
groups and editorial writers opposed to this nomination have relied on 
invective and ridicule to try to discredit me. Among other things, some 
have likened nominating me to nominating Larry Flynt, a pornographer, 
to high office. Nominating me has been likened to nominating David 
Duke, one-time leader in the Ku Klux Klan, to high office. Nominating 
me has been likened to nominating Theodore Kaczynski, the Unabomber, a 
murderer, to high office.
  Professor Smith went on and said: Just this week I saw a new one. I 
was compared to nominating Jerry Springer, which is probably not a good 
comparison since Springer is a Democrat. Other critics have attempted 
ridicule, labeling me a ``flat Earth Society poobah,'' and more.
  He says: I say all this not by way of complaint because I'm sure that 
Members--he is referring to Members of the

[[Page 8770]]

Senate--have probably been called similar or worse things in the course 
of their public lives.
  I thought it might be appropriate to begin with a photograph of 
Professor Smith and his family, which bears little resemblance to Larry 
Flynt, David Duke, or Theodore Kaczynski.
  It is my distinct honor today to rise 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 might state this is a different kind of commission. It is a 
commission set up on purpose to have three members of one party and 
three members of another party so that neither party can take advantage 
of the other in these electoral matters that come before the 
Commission. The Federal Election Commission is charged with regulating 
the political speech of individuals, groups, and parties without 
violating the first amendment guarantee of freedom of speech and 
association--obviously, a delicate task.
  Over the past quarter century, the FEC has had difficulty maintaining 
this all-important balance and has been chastised, even sanctioned, by 
the Federal courts for overzealous prosecution and enforcement that 
treated the Constitution with contempt and trampled the rights of 
ordinary citizens.
  In light of the FEC's congressionally mandated balancing act and the 
fundamental constitutional freedoms at stake, Congress established the 
balanced, bipartisan, six-member Federal Election Commission. The law 
and practice behind the FEC nominations process has been to allow each 
party to select its FEC nominees. The Republicans pick the Republicans; 
the Democrats pick the Democrats. As President Clinton said recently, 
this is, ``the plain intent of the law, which requires that it be 
bipartisan and by all tradition, that the majority make the 
nomination'' to fill the Republican seat on the Commission.
  Professor Bradley Smith was a Republican choice agreed to by the 
Republicans in the House and the Republicans in the Senate and put 
forward by the Republicans to the President of the United States, who 
has nominated him.
  Typically, Republicans complain that the Democratic nominees prefer 
too much regulation and too little freedom, while Democrats complain 
that the Republican nominees prefer too little regulation and too much 
freedom.
  Ultimately both sides bluster and delay a bit, create a little free 
media attention, and then move the nominees forward. In fact, the 
Senate has never voted down another party's FEC nominee in a floor vote 
or even staged a filibuster on the Senate floor.
  At the end of the day, however, the bipartisan nature of the FEC 
serves the country well. The FEC gets a few commissioners that 
naturally lean toward regulation and a few commissioners that naturally 
lean toward constitutionally-protected freedoms. And the country gets a 
six-member bipartisan Federal Election Commission to walk the critical 
fine line between regulation and freedom.
  The Dean of Stanford Law School, Kathleen Sullivan, has summed up the 
balance as well as anyone. Specifically, she praised Professor Smith 
for the instrumental role he would play in upholding constitutional 
values and establishing a bipartisan equilibrium:

       I do think Mr. Smith's views are in the mainstream of 
     constitutional opinion. . . . I think it is a good thing, not 
     a bad thing, to have people who are very attuned to 
     constitutional values in Government positions, just as we 
     would think it is a good thing to have a prosecutor who 
     thinks very highly of the Fourth Amendment and wants to make 
     sure searches are always reasonable, maybe more so than some 
     of his colleagues. It is certainly good to have one of those 
     prosecutors in the shop, and it certainly would be a good 
     thing to have one Commissioner at least who has those views.

  Let me say that I sincerely hope that we can uphold this bipartisan 
law and tradition that President Clinton invoked when he sent these two 
nominees to the Senate.
  After all, Professor Smith's views are similar to the Republicans who 
have gone before him. And, Commissioner McDonald's views are similar to 
those he himself has held for the past 18 years as one of the 
Democrats' commissioners at the FEC. In fact, Commissioner McDonald's 
views are so consistent with and helpful to the Democratic Party that 
former Congressman and current Gore campaign chairman Tony Coelho has 
hailed Commissioner McDonald as ``the best strategic appointment'' the 
Democrats ever made. So, notwithstanding the bluster and delay, these 
two nominees largely represent their parties' long line of past FEC 
Commissioners. One could argue that the only thing new in this debate 
is the opportunity for new headlines.
  Again, let me restate the questions before the Senate on these two 
FEC nominees?
  Is each nominee experienced, principled and ethical?
  Will the FEC continue to be a balanced, bipartisan commission?
  I dedicate the remainder of my opening comments this morning to 
reading a few excerpts from the flood of letters I have received in 
support of Professor Smith since he was nominated. These letters from 
those who agree and those who disagree with Professor Smith clearly 
establish that: (1) Professor Smith is experienced, principled and 
ethical, and (2) his service would help the FEC to be balanced and 
bipartisan.
  Even staunch advocates of reform, including two past board members of 
Common Cause, have written in support of Professor Smith's nomination. 
These many letters attest to the central role that Professor Smith's 
scholarship has played in mainstream thought about campaign finance 
regulation. Equally important, these letters make clear that no one who 
knows Brad Smith personally or professionally, including self-avowed 
reformers, believes that he will fail to enforce the election laws as 
enacted by Congress or to fulfill his duties in a fair and even-handed 
manner.
  All of the scholars that have written urging the confirmation of 
Professor Smith believe that his scholarly work is not radical but 
rather well-grounded in mainstream First Amendment doctrines and case 
law. Let me share with you a few examples of what these experts say.
  I ask unanimous consent the full text of these letters that I am 
going to be reading be printed in the Record at the conclusion of my 
remarks.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See exhibit 1.)
  Mr. McCONNELL. First, Professor Daniel Kobil, Capital Law School, 
Reform Advocate and Past Director of Common Cause, Ohio:

       Groups seeking to expand campaign regulations dramatically 
     might have misgivings about Brad's nomination. However, I 
     believe that much of that opposition is based not on what 
     Brad has said or written about campaign finance regulations, 
     but on crude caricatures of his ideas that have been 
     circulated. . . . I think that the FEC and the country in 
     general will benefit from Brad's diligence, expertise, and 
     solid principles if he is confirmed to serve on the 
     Commission.

  Second, Professor Larry Sabato, Director of the University of 
Virginia Center for Governmental Studies, appointed by Senator George 
Mitchell to the Senate's 1990 Campaign Finance Reform Panel:

       Contrary to some of the misinformed commentary about 
     Professor Smith's work and views, his research and opinions 
     in the field of campaign finance are mainstream and 
     completely acceptable. For example, Professor Smith has 
     argued in several of his academic papers for a kind of 
     deregulation of the election rules in exchange for stronger 
     disclosure of political giving and spending. This is 
     precisely what I have written about and supported in a number 
     of publications as well. Bradley certainly supports much of 
     the work of the Federal Election Commission and understands 
     its importance to public confidence in our system of 
     elections. I have been greatly disturbed to see that some are 
     not satisfied to disagree with Professor Smith and make those 
     objections known, but believe it necessary to vilify the 
     professor in an almost McCarthyite way. I do not use that 
     historically hyper-charged word lightly, but it applies in 
     this case. Any academic with a wide ranging portfolio of 
     views on a

[[Page 8771]]

     controversial subject could be similarly tarred by groups on 
     the right or left.

  Third, Professor John Copeland Nagle of Notre Dame Law School:

       Professor Smith's view is shared by numerous leading 
     academics from across the political and ideological spectrum, 
     including Dean Kathleen Sullivan of the Stanford Law School 
     and Professor Lillian BeVier of the University of Virginia 
     School of Law. His understanding of the First Amendment has 
     been adopted by the courts in sustaining state campaign 
     finance laws.

  Fourth, Professor Burt Neuborne of the Brennan Center at New York 
University. There is no group in America that disagrees more 
passionately with Professor Smith on campaign finance than the Brennan 
Center. Yet, listen to what Burt Neuborne, the Legal Director of the 
Brennan Center had to say about Smith's scholarship.
  Neuborne considers Professor Smith's writings to be ``thoughtful 
discussions of topics of extreme importance'' and concludes that Smith 
has done ``excellent work in debunking the status quo.'' He goes on to 
say of Professor Smith's scholarship:

       I learned from it and altered aspects of my own approach as 
     a result of his argument. It is, in my opinion, thoughtful 
     scholarship that helps us move toward a better understanding 
     of an immensely important national issue. Higher praise than 
     that I cannot give.

  It also speaks well of Professor Smith that constitutional scholars 
and election law experts that know him personally and are familiar with 
his work, including some who have served on the board of Common Cause, 
are confident that he will faithfully enforce the law as enacted by 
Congress and upheld by the courts. Here are just a few examples of the 
confidence these experts have in Brad Smith's integrity and commitment 
to the rule of law.
  Fifth, Professor Daniel Lowenstein of UCLA Law School, served six 
years on Common Cause National Governing Board:

       Anyone who compares his writings on campaign finance 
     regulation with mine will find that our views diverge 
     sharply. Despite these differences, I believe Smith is highly 
     qualified to serve on the FEC. . . . 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. . . . 
     In my opinion, although my views on the subject are not the 
     same as theirs, [the Senate Republican Leadership] deserves 
     considerable credit for having picked a distinguished 
     individual rather than a hack. . . . Although many people, 
     including myself, can find much to disagree with in Bradley 
     Smith's views, I doubt if anyone can credibly deny that he 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.

  Sixth, Professor Daniel Kobil of Capital Law School, former governing 
board member of Common Cause, Ohio:

       Knowing Brad personally, I have no doubt that his critics 
     are wrong in suggesting that as a FEC Commissioner, Brad 
     would refuse to enforce federal campaign regulations because 
     he disagrees with them. I have observed Brad's election law 
     class on several occasions and he always took the task of 
     educating his students about the meaning and scope of 
     election laws very seriously. I have never heard him 
     denigrating or advocating skirting state and federal laws, 
     even though he may have personally disagreed with some of 
     those laws. Indeed, several times in class he admonished 
     students who seemed to be suggesting ignoring what they 
     considered overly harsh election laws. Brad is an ethical 
     attorney who cares deeply about the rule of law. I am 
     confidant that he will fairly administer the laws he is 
     charged with enforcing as a Commissioner.

  Seventh, Professor Randy Barnett of Boston University Law School:

       I . . . can tell you and your colleagues that [Professor 
     Smith] is a person of the highest character and integrity. If 
     confirmed, Brad will faithfully execute the election laws 
     which the Commission is charged to enforce--including those 
     with which he disagrees . . . . Brad's critics need not fear 
     that he will ignore current law, but those who violate it may 
     have reason to be apprehensive.

  Let me close my opening comments by sharing with you Brad Smith's own 
closing remarks in his statement before the Senate Rules Committee:

       [S]hould you confirm my nomination to this seat, which I 
     hope that you will, here is my pledge to you. First, I will 
     defer to Congress to make law, and not seek to usurp that 
     function to the unelected bureaucracy. Second, when the 
     Commission must choose under the law, whether to act or not 
     to act, or how to shape rules necessary for the law's 
     enforcement, faithfulness to congressional intent and the 
     Constitution, as interpreted by the courts, will always be 
     central to my decision making. Third, I will act to enforce 
     the law as it is, even when I disagree with the law. . . . 
     Finally, I pledge that I will strive at all times to maintain 
     the humility that I believe is necessary for any person 
     entrusted with the public welfare to successfully carry out 
     his or her duties.

  I think, with all due respect to current and past members of the FEC, 
this is clearly the most outstanding individual ever nominated for that 
commission. We all regret that this nomination has taken on some level 
of controversy because of Professor Smith's views, which are similar to 
those of 95 percent of the Republicans in the Senate. But that happens 
occasionally.
  I am confident that well-meaning Senators on both sides of the aisle 
will remember that this is a bipartisan agency. It is supposed to have 
three Democrats, picked by the Democrats, and three Republicans, picked 
by the Republicans. It is important for us to honor each others' 
choices if the FEC is to work. So I am hopeful and confident that 
Professor Smith's nomination will be confirmed tomorrow when the roll 
is called.
  With that, I yield the floor.

                               Exhibit 1

                                          University of California


                                                School of Law,

                               Los Angeles, CA, February 17, 2000.
     Re Bradley Smith nomination.

     (Attn: Andrew Siff)

     Senator Micth McConnell,
     Senate Rules Committee, Senate Office Building, U.S. Senate, 
         Washington, DC

       Dear Senator McConnell: I write in support of the 
     nomination of Bradley Smith to serve on the Federal Election 
     Commission. My support is not based on either partisan or 
     ideological grounds. To the contrary, I have been an active 
     Democrat since 1970, whereas, as is well known, Smith's 
     appointment to the FEC was proposed by Republicans. Anyone 
     who compares Smith's writings on campaign finance regulation 
     with mine will find that our views diverge sharply. Despite 
     these differences, I believe Smith is highly qualified to 
     serve on the FEC.
       The difficulties that have affected the performance of the 
     FEC since its creation have not been caused by the 
     ideological views of its members, but by excessive 
     partisanship and, sometimes, by mediocrity. 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.
       That the Senate Republican leaders should have proposed an 
     individual who matches their ideological views on campaign 
     finance regulations should not have surprised anyone. Law and 
     custom assume that the members of the FEC will have different 
     partisan and ideological backgrounds. In my opinion, though 
     my views on the subject are not the same as theirs, these 
     leaders deserve considerable credit for having picked a 
     distinguished individual rather than a hack.
       That Smith is indeed distinguished can hardly be doubted. 
     He has published numerous articles on campaign finance 
     regulation in distinguished law journals. These articles are 
     widely recognized as leading statements of one of the major 
     positions in the campaign finance debate. In 1995 I published 
     the first American textbook of the twentieth century on 
     election law (Election Law, Carolina Academic Press). Not 
     long after the book was published, Smith published his first 
     major article on campaign finance in the Yale Law Journal. 
     With his permission, I included extended excerpts from that 
     article in the supplements that have been published for my 
     textbook. I certainly would not have done so unless I 
     regarded his article as intellectually distinguished.
       It is understandable that in an area such as campaign 
     finance regulation, whose effects are so far-reaching for all 
     competitors in American politics, appointments should be 
     highly contested. However, as I mentioned above, the system 
     contemplates that individuals with different backgrounds and 
     beliefs will serve on the FEC. Although many people, 
     including myself, can find much to disagree with in Bradley 
     Smith's views, I doubt if anyone can credibly deny that he 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. If such an individual is denied 
     confirmation, the result inevitably will be to compound the 
     already prevalent gridlock in this difficult area of public 
     policy.
       If I can provide any additional information I should be 
     happy to do so. I can be reached

[[Page 8772]]

     at 310-825-5148, and at <[email protected]>
           Sincerely,
                                             Daniel H. Lowenstein,
     Professor of Law.
                                  ____

                                                Capital University


                                      Law School, Columbus OH,

                                                February 15, 2000.
     Re nomination of Professor Bradley A. Smith for Commissioner 
         on Federal Election Commission.

     Hon. Mitch McConnell,
     Chair, Senate Committee on Rules and Administration, Russell 
         Senate Office Building, U.S. Senate, Washington, DC.
       Dear Senator McConnell: I am writing in support of 
     Professor Bradley A. Smith's nomination for a position as a 
     Commissioner on the Federal Election Commission. I have known 
     Brad since he joined the faculty of Capital Law School in the 
     Fall of 1993 as a visiting professor, and have served as the 
     chair of his committee for purposes of considering his tenure 
     and promotion, most recently to Full Professor. He is, in my 
     view, an outstanding candidate for the position and should 
     certainly be confirmed.
       As a friend and colleague of Brad's, I am of course aware 
     of the controversy surrounding his nomination to a position 
     on the FEC. Indeed, as a former governing board member for 
     Common Cause, Ohio, I can understand why groups seeking to 
     expand campaign regulations dramatically might have 
     misgivings about Brad's nomination. However, I believe that 
     much of that 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.
       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 have taught 
     Constitutional Law at Capital Law School for nearly thirteen 
     years. I was also counsel for amicus curiae, the ACLU of 
     Ohio, in a significant case dealing with the intersection of 
     the First Amendment and election law, Pestrak v. Ohio 
     Elections Commission, 926 F2d 573 (6th Cir. 1991).
       Brad's central premise, that limits on political 
     contributions burden expression and should only be upheld for 
     the most compelling reasons, is hardly radical. It has long 
     been a basic tenet of the Supreme Court's First Amendment 
     jurisprudence that the amount and content of speech cannot be 
     limited except for the most important reasons. Brad's 
     writings do question the Supreme Court's conclusion in 
     Buckley v. Valeo that the government's interest in preventing 
     the appearance of corruption is sufficient to outweigh the 
     burden campaign finance regulations place on speech. However, 
     this critique is not outlandish, but calls attention to the 
     one of the obvious tensions in Buckley that in my view ought 
     to be continuously reexamined by courts and scholars if the 
     basic values underlying the First Amendment are to be 
     adequately protected.
       Moreover, having come to knowing Brad personally, I have no 
     doubt that his critics are wrong in suggesting that as a FEC 
     Commissioner, Brad would refuse to enforce federal campaign 
     regulations because he disagrees with the laws. I have 
     observed Brad's Election Law class on several occasions and 
     he always took the task of educating his students about the 
     meaning and scope of election laws very seriously. I have 
     never observed him denigrating or advocating skirting state 
     and federal election laws, even though he may have personally 
     disagreed with some of those laws. Indeed, several times in 
     class he admonished students who seemed to be suggesting 
     ignoring what they considered overly harsh election laws. 
     Brad is an ethical attorney who cares deeply about the rule 
     of law. I am confident that he will fairly administer the 
     laws he is charged with enforcing as a Commissioner.
       In conclusion, I think that the FEC and the country in 
     general will benefit from Brad's diligence, expertise, and 
     solid principles if he is confirmed to serve on the 
     Commission. Please contact me if I can provide additional 
     information or assist the Committee in any way regarding 
     Brad's nomination.
           Very Truly Yours,
                                                  Daniel T. Kobil,
     Professsor of Law.
                                  ____

                                           University of Virginia,


                                    Woodrow Wilson Department,

                               Charlottesville, VA, March 1, 2000.
     Senator Mitch McConnell,
     Chairman, Senate Rules Committee, Russell Building, U.S. 
         Senate, Washington, DC.

     (Attention Andrew Siff)

       Dear Senator McConnell: I am pleased to write this letter 
     in support of Professor Bradley Smith's nomination to the 
     Federal Election Commission. I believe Professor Smith is a 
     solid and informed choice for the vital federal agency at a 
     critical moment in its history. I am pleased to be able to 
     add my voice to many who support Professor Smith.
       My own credentials in this field are outlined in the 
     attached vita. I have published several books and many 
     articles in the field, including Pac Power: Inside the World 
     of Political Action Committees, Paying for Elections, and 
     Dirty Little Secrets. In addition, I was honored and 
     privileged to serve on the U.S. Senate's campaign finance 
     reform panel back in 1990, having being jointly appointed by 
     then-majority leader George Mitchell and minority leader 
     Robert J. Dole.
       Contrary to some of the misinformed commentary about 
     Professor Smith's work and views, his research and opinions 
     in the field of campaign finance are mainstream and 
     completely acceptable. For example, Professor Smith has 
     argued in several of his academic papers for a kind of 
     deregulation of the election rules in exchange for stronger 
     disclosure of political giving and spending. This is 
     precisely what I have written about and supported in a number 
     of publications as well. Bradley certainly supports much of 
     the work of the Federal Election Commission and understands 
     its importance to public confidence in our system of 
     elections. I have been greatly disturbed to see that some are 
     not satisfied to disagree with Professor Smith and make those 
     objections known, but believe it is necessary to vilify the 
     professor in almost a McCarthyite way. I do not use that 
     historically hyper-charged word lightly, but it applies in 
     this case. Any academic with a wide-ranging portfolio of 
     views on a controversial subject could be similarly tarred by 
     groups on the right or left. I hope and trust that under your 
     able leadership, the Senate Rules Committee will not give in 
     to this kind of vicious sloganeering and character 
     assassination.
       I should note that I don't completely agree with Professor 
     Smith's views and opinions in all respects. Even though we 
     have our differences, I fully respect his scholarship and the 
     clear argumentation and documentation that undergirds it. I 
     have not been a long acquaintance of Professor Smith so I 
     cannot be accused of simply backing an old chum! Instead, I 
     am supporting Bradley Smith because he is fully qualified for 
     the Federal Election Commission and I believe that he will do 
     an outstanding job, putting in long hours and thoroughly 
     analyzing the complicated subjects that come before the 
     Commission. I trust him to fulfill his public 
     responsibilities with great care and a determination to be 
     fair and honest. That is all one can reasonably ask from a 
     nominee.
       Thank you for permitting me the opportunity to offer these 
     observations. Please let me know if I can be of any 
     additional help as Professor Smith's nomination moves 
     forward, as it should.
       With every good wish,
           Yours respectfully,
     Dr. Larry J. Sabato.
     Robert Kent Gooch,
       Professor Of Government and Foreign Affairs, and Director 
     of the University of Virginia Center for Governmental 
     Studies.
                                  ____



                                        Notre Dame Law School,

                                Notre Dame, IN, February 18, 2000.
     Hon. Mitch McConnell,
     U.S. Senate, Russell Senate Office Building, Washington, DC.

     (Att'n: Andrew Siff)

       Dear Senator McConnell: It is my privilege to recommend 
     Bradley A. Smith for appointment to the Federal Election 
     Commission (FEC).
       Professor Smith is a leading scholar in election law. His 
     work--which has appeared in such prestigious publications as 
     the Yale Law Journal and the Georgetown Law Journal--is 
     innovative, academically rigorous, and an exciting 
     contribution to the existing literature in the field of 
     campaign finance legislation. He is one of the few scholars 
     who has investigated how campaigns were financed before the 
     second half of the twentieth century, see Bradley A. Smith, 
     Faulty Assumptions and Undemocratic Consequences of Campaign 
     Finance Reform, 105 Yale L.J. 1049, 1053-56 (1996), and his 
     scholarship builds upon the lessons that history teaches. For 
     example, he dispels a common perception by observing that 
     ``the role of the small contributor in financing campaigns . 
     . . has increased, rather than declined, over the years.'' 
     Id. at 1056. He has closely examined the way in which money 
     affects both political campaigns and the legislative process, 
     concluding that the precise relationship between campaign 
     spending and corruption is far more complicated than many 
     commonly assume. See id. at 1057-71; Bradley A. Smith. Money 
     Talks: Speech, Corruption, Equality, and Campaign Finance, 86 
     Geo.L.J. 45, 58-60 (1997). Yet that is exactly the kind of 
     analysis that should be performed when considering what legal 
     regulation is merited, especially in light of the frequent 
     laments that the federal campaign finance laws enacted in the 
     1970's have not performed as Congress hoped or expected.
       Professor Smith questions the compatibility of campaign 
     restrictions with the first amendment. In doing so, he gives 
     voice to the many organizations across the political and 
     idelolgical spectrum who fear the impact of some of the 
     proposed legal regulation on the ability of citizens and 
     groups of communicate their message to the public. Professor 
     Smith's view is shared by numerous leading academics, again 
     from across the political and ideological spectrum, including

[[Page 8773]]

     Dean Kathleen Sullivan of the Stanford law School and 
     Professor Lillian BeVier of the University of Virginia School 
     of Law. His understanding of the first amendment has been 
     adopted by the courts in sustaining state campaign finance 
     regulations. See Toledo Area AFL-CIO v. Pizza, 154 F.3d 307, 
     319 (6th Cir. 1998) (quoting Professor Smith's description of 
     the first amendment). But Professor Smith sees the first 
     amendment in an affirmative light rather than a negative one. 
     As he has so eloquently explained:
       ``By assuring freedom of speech and of the press, the First 
     Amendment allows for exposure of government corruption and 
     improper favors and provides voters with information on 
     sources of financial support. There is no shortage of 
     newspaper articles reporting on candidate spending and 
     campaign contributions, and candidates frequently make such 
     information an issue in campaigns. By keeping the government 
     out of the electoral arena, the First Amendment allows for a 
     full interplay of political ideas and prohibits the type of 
     incumbent self-dealing that has so vexed the reform movement. 
     It allows challengers to raise the funds necessary for a 
     successful campaign and keeps channels of political change 
     open. By prohibiting excessive regulation of political speech 
     and the political process, the First Amendment, properly 
     interpreted, frees individuals wishing to engage in political 
     discourse from the regulation that now restrains grassroots 
     political activity. And because the First Amendment, properly 
     applied to protect contributions and spending, makes no 
     distinctions between the power bases of different political 
     actors, it helps to keep any particular faction or interest 
     from permanently gaining the upper hand. In each respect, it 
     promotes true political equality.''
     Smith, 105 Yale L.J AT 1090. This positive explanation far 
     better serves the first amendment than the frightening 
     prospect that the meaning of the Constitution's protections 
     might soon depend upon the perceived majority desire for the 
     stringent regulation of political campaigns. See Nixon v. 
     Shrink Missouri Government PAC, 120 S. Ct. 897 (2000) 
     (Breyer, J., concurring)(suggesting that the Supreme Court's 
     interpretation of the first amendment should change if it 
     ``denies the political branches sufficient leeway to enact 
     comprehensive solutions to the problems posed by campaign 
     finance'').
       Yet Professor Smith understands the problems evidence in 
     our current system. He recognizes the need for ``radical'' 
     reform, see Bradley A. Smith, A Most Uncommon Cause: Some 
     Thoughts on Campaign Reform and a Response to Professor Paul, 
     30 Conn. L. Rev. 831, 837 N.37 (1998) , a sympathy that I 
     share. See John Copeland Nagle, The Recusal Alternative to 
     Campaign Finance Reform, 37 Harv. J. Legis. (forthcoming 
     February 2000). What impresses me most about Professor Smith 
     is his insistence that the problems evident in our existing 
     system be addressed in a manner that protects constitutional 
     rights. It is far too easy to assume that the first amendment 
     must be discarded when it is inconvenient to adhere to its 
     teachings. Moreover, apart from the commands of the 
     Constitution, Professor Smith has questioned whether the same 
     kinds of proposed solutions that have been tried and failed 
     for nearly thirty years are best suited for the kinds of 
     problems that we face today. Indeed, he has identified a 
     number of unintended effects of the standard restrictions on 
     campaign contributions and expenditures, including the 
     entrenchment of the status quo, the promotion of influence 
     peddling, the favoritism of select elites and special 
     interests, and perhaps most obviously, the encouragement of 
     wealthy candidates. See Smith, 105 Yale L.J. at 1072-84. 
     Instead, Professor Smith had advocated other actions that 
     could be taken to solve the problem, including increased 
     disclosure requirements. See Smith, 45 Geo. L.J. at 62-62. 
     But Professor Smith has clearly stated his preferred remedy: 
     ``I believe strongly that the best solution to any ills in 
     our political system lies in the American voter.'' Smith, 30 
     Conn. L. Rev. at 862. I cannot imagine a more attractive view 
     to be possessed by a member of the Federal Election 
     Commission.
       Perhaps most importantly, Professor Smith has displayed a 
     fidelity to the law. His writing about the first amendment 
     shows that the he abides by the Constitution regardless of 
     the consequences. Professor Smith is also faithful to the 
     laws enacted by Congress. He has counseled that both the 
     statues enacted by Congress and the constitutional decisions 
     of the courts are entitled to respect whether or not one 
     agrees or disagrees with them. See Bradley A. Smith, Soft 
     Money, Hard Realities: The Constitutional Prohibition on a 
     Soft Money Ban, 24 J. Legis, 170, 200 (1998), In sort, he 
     possesses the ``experience, integrity, impartiality, and good 
     judgment,'' 2 U.S.C. Sec. 437c(a)(3), necessary to serve on 
     the FEC.
       Please contact me at (219) 631-9407 or at 
     [email protected] if you have any further questions about 
     Professor Smith's nomination to the FEC. He will be an 
     excellent commissioner.
           Sincerely,
                                              John Copeland Nagle,
     Associate Professor.
                                  ____

                                                Boston University,


                                                School of Law,

                                    Boston, MA, February 13, 2000.
     Senator Mitch McConnell,
     Chair, Senate Committee on Rules and Administration, Russell 
         Senate Office Building, U.S. Senate, Washington, DC.
       Dear Senator McConnell: I am writing to strongly urge the 
     Senate to confirm the nomination of Brad Smith as a 
     commissioner on the Federal Communications Commission. I have 
     known Brad well since he was a student at Harvard Law School, 
     and have followed his academic career closely, and can tell 
     you and your colleagues that he is a person of the highest 
     character and integrity. If confirmed, Brad will faithfully 
     execute the election laws which the Commission is charged to 
     enforce--including those with which he disagrees--and he will 
     also take seriously the rights guaranteed by the 
     Constitution.
       Though election law is not my specialty, I am generally 
     familiar with Brad's writings in the field and I have written 
     extensively on the Constitution and, in particular, the 
     constitutional protection of liberty. I believe that Brad's 
     positions on federal election laws in general, and campaign 
     finance laws in particular, are far more consonant with the 
     requirements of both the First Amendment and the Supreme 
     Court's first amendment jurisprudence than are the views of 
     his critics. These critics would deny public office to anyone 
     who disagrees with their views of good policy, or to anyone 
     who believes in reforming existing law in a manner with which 
     they disagree.
       I share Brad's policy view that the goal of free, fair, and 
     competitive elections would be better served with less rather 
     than more regulation of elections. But I have no doubt 
     whatsoever that he will vigorously enforce current law. 
     Indeed, in recent years, we have seen wholesale and flagrant 
     violations of current election laws which have gone largely 
     unenforced by the FEC and the Justice Department. Brad's 
     critics need not fear that he will ignore current law, but 
     those who violate it may have reason to be apprehensive.
           Sincerely,
                                                 Randy E. Barnett,
                                     Austin B. Fletcher Professor.

  The PRESIDING OFFICER. The Chair recognizes the Senator from 
Connecticut.
  Mr. DODD. Mr. President, I begin by thanking the distinguished 
chairman of the Rules Committee for his leadership and for bringing 
these matters to the floor. We will have roughly 6 hours of debate on 
this matter. A number of my colleagues have some very strong views 
about this nomination and will take the time to express them at the 
appropriate time.
  I begin by apologizing to Danny Lee McDonald, the Democratic nominee 
for the Federal Election Commission, and his family. I do not have a 
picture of Danny Lee McDonald. I do not know if he has a dog or not, or 
two dogs. I will try to correct that before the next 6 hours and see if 
I can come up with a nice picture of Mr. McDonald to show to our 
colleagues and the public.
  Mr. McCONNELL. Will my friend yield?
  Mr. DODD. I will be happy to yield.
  Mr. McCONNELL. Had Commissioner McDonald been subjected to the same 
things to which the Republican nominee has been subjected, my colleague 
might have needed a picture with children and dogs. In any event, we 
are going to be voting on him as well after we vote on Professor Smith.
  Mr. DODD. If he does not have a dog, maybe he can rent one. This is a 
fine looking dog here. Maybe we can borrow that fine looking red dog 
for our picture. I apologize to Mr. McDonald, we do not have a similar 
photograph of him and his family and dog before us.
  I want to take our colleagues who are monitoring this back in time 
for a historical framework before I get to the issue of the nominees 
before us because it might be helpful for people to understand the 
legislative background as well as the historical background of these 
nominees and how the process has proceeded over this past quarter of a 
century. It has been 25 years since we created these positions. It 
might be worthwhile to understand how this process has worked and how 
nominees have historically been handled.
  My colleague from Kentucky has already alluded to that in his opening 
comments. I thought it might be helpful to take a few minutes and give 
a history lesson about the Federal Election Commission and about the 
people who have been nominated to fill these positions.
  We are here to consider two Presidential nominations. That is the 
first

[[Page 8774]]

lesson. We are considering Presidential nominations. The Republican 
Party may have promoted Brad Smith and the Democrats may have promoted 
Danny McDonald, but, in fact, these are two nominations that have been 
sent to us by President Clinton, as every other President has done 
during the consideration of nominees for the Federal Election 
Commission.
  The two nominees are Danny McDonald of Oklahoma to fill the 
Democratic seat and Brad Smith of Ohio to fill the Republican seat on 
the Commission. Rollcall votes, as we know, will be conducted later 
this week.
  It is somewhat unusual, although not unprecedented, for the Senate to 
take a significant amount of time to debate Presidential nominees to 
the Federal Election Commission. I know some of my colleagues have 
planned extensive remarks, and they are not out of order at all in 
doing that. It has been done on other occasions.
  It is even more unusual for the Senate to conduct a rollcall vote, 
however, on such nominees. It might be instructive to briefly review 
Senate action of FEC nominees over the past 25 years since the creation 
of the Commission.
  Approximately 43 nominees, including reappointments, have been 
submitted to the Senate for consideration to this Commission. Of that 
total, only three nominations have required a rollcall vote by this 
body in the past quarter of a century. In each of those three 
instances, the nominees were confirmed by the Senate. The Senate has 
never voted to reject a nominee to the Federal Election Commission 
submitted by respective Presidents.
  Of the remaining 40 or so nominees, 3 were withdrawn by Presidents 
for various reasons, 1 was returned to the President without action 
under rule XXXI of the Senate, 3 were recess appointments, 2 of which 
were confirmed by the Senate by unanimous consent; and the remainder, 
some 33 nominees, were all confirmed by unanimous consent without 
recorded votes in the Senate.
  In the last 10 years, pairs of nominees, one Democrat paired with one 
Republican, have been considered by the Senate Rules Committee, 
reported to the Senate, and confirmed en bloc by unanimous consent. In 
the most recent action by the Senate in 1997, four nominees, or two 
pairs, were considered and confirmed in this manner and confirmed by 
unanimous consent, again en bloc.
  How is it possible so many nominees, to what is considered by some to 
be a controversial agency, have received the nearly unanimous support 
of this body throughout the past 25 years? I suggest the answer lies in 
the very statute that created this Commission.
  Chapter 14 of title 2 of the United States Code governs Federal 
campaigns. Section 437c establishes the Federal Election Commission and 
provides for the appointment of Commissioners. The statute provides 
for--and I apologize for going through this laboriously, but it may 
help to understand the background of all of this--the statute provides 
for the appointment by the President, with the advice and consent of 
the Senate, of six members to the Commission. Further, the statute 
provides that no more than three members of the Commission be 
affiliated with the same political party; and that members shall serve 
for 6 years, with the requirement that the initial six members serve 
staggered terms, with two members not affiliated with the same 
political party being paired for each of the staggered terms. These 
requirements were adopted by the Congress in the 1976 amendments to the 
Federal Election Campaign Act.
  The Supreme Court struck down the original membership provision of 
this act in the landmark case of Buckley v. Valeo. The original 
provisions of the 1971 act provided that the six members of the 
Commission be appointed by the President, the President pro tempore of 
the Senate, and the Speaker of the House, with confirmation by a 
majority of both Houses of Congress. The Buckley Court struck that 
process down.
  What is obvious, however, is it has always been the intent of 
Congress that these nominees be appointed with regard to their party 
affiliation. That part has been quite clear.
  Moreover, these nominees are appointed and considered in pairs--one 
Democratic nominee paired with a Republican nominee --and that is how 
the Committee on Rules and Administration has also traditionally 
considered FEC nominees. The committee has similarly paired their 
consideration so that no hearings are held, nor are the nominees 
reported, except in strict pairs.
  In recent history, the Rules Committee has reported pairs of 
nominees, voting to report the pair en bloc to the Senate as a full 
body. That is the case with the two nominees before the Senate today. 
The Rules Committee held a confirmation hearing in which both nominees 
appeared, presented testimony, and answered questions of members of the 
committee. On March 8, the committee, by a voice vote, reported these 
nominations en bloc to the full body. That is also why the overwhelming 
majority of these FEC nominees have moved through the Senate over the 
past 25 years by unanimous consent, often, again, confirmed en bloc.
  The statute creates a presumption that the views of each of the two 
major political parties will be represented by the three members of the 
Commission. And the practice that has developed that the leadership of 
the Congress, both Republican and Democratic leadership, communicate to 
the President their preferences for the nominees.
  Presidents have rejected these preferences in the past. I noted that 
earlier. This practice may be a holdover from the original provisions 
in which the President of the Senate and the Speaker of the House 
actually chose the nominees under the 1971 statute. Now the 
recommendations are made to the President, and the President makes the 
nomination. He can reject the recommendations, which Presidents have. 
Ronald Reagan rejected a nominee, and I recall Jimmy Carter also. 
Others may have a better recollection historically of that.
  This practice may be a holdover from the original provisions in which 
the President pro tempore of the Senate and the Speaker of the House 
actually chose the nominees. Or it may reflect the reality that such 
nominees, because they are intended to reflect the relative views of 
the political parties, must be confirmed by members of those parties in 
the Senate. In either event, these nominees are accepted as somewhat 
partisan in their views and consequently are paired in their 
consideration.
  So why does the Senate find itself in the somewhat unusual position 
of taking the time of the body to fully debate and conduct rollcall 
votes on these nominees? Not surprisingly, each of these nominees is 
very closely associated with the majority views of their party on 
issues of campaign finance reform. Commissioner McDonald has been a 
member of the FEC since 1982. He is currently Vice Chairman of the 
Commission. He has been reaffirmed to a seat on the Commission twice 
since his original appointment. During his tenure, he served as 
Chairman of the Commission three times, and as Vice Chairman four 
times.
  Professor Bradley Smith is a distinguished professor of law at 
Capital University Law School in Columbus, OH. He is the author of 
numerous scholarly articles on campaign finance and his views are well-
published and widely known on this subject matter.
  In testimony before the Rules Committee, Mr. Smith acknowledged that, 
notwithstanding the decision of the Supreme Court in Buckley and the 
long line of cases that follow, he happens to believe the first 
amendment should be read to prohibit restrictions on campaign 
contributions.
  Mr. Smith has similarly argued that Congress needs to reverse course 
and loosen campaign finance regulations. He has argued that contrary to 
the belief of a majority in Congress, and a majority of the American 
people, that there is too much money in politics today, Mr. Smith 
argues that money increases speech and therefore we need more speech--
and more money, I argue, from his point of view--in our campaigns. He 
also argues that campaigns

[[Page 8775]]

funded by small donors are not more democratic and that, in fact, large 
donors are healthier for the system. Mr. Smith has also argued that the 
perception that money buys elections is incorrect and that rather than 
corrupting the system, limiting money corrupts the system by 
entrenching the status quo, favoring wealthy individuals, and making 
the electoral process less responsive to public opinion.
  Let me categorically state for the record that I could not disagree 
more with Mr. Smith's positions and his writings when it comes to 
campaign finance. It is clear to me that money plays far too great a 
role in campaigns today. I could not disagree more that limits on 
contributions are not only constitutional but necessary for our form of 
democracy to survive.
  There is no doubt in my mind that money corrupts, or has the 
appearance of corrupting our system, and this perception threatens to 
undermine our electoral system and jeopardize the confidence in our 
form of democracy.
  I could not disagree more with Mr. Smith's conclusion that Congress 
needs to reverse course and loosen campaign finance regulations. It is 
past time for this Congress to pass comprehensive campaign finance 
reform, which I have consistently supported and will continue to 
support.
  That is what the debate in the Senate is about today--whether or not 
this Congress will act on the will of the people and bring this system 
of campaign finance loopholes and the money chase to a close. My 
support for such action could not be more clear.
  Notwithstanding my strong disagreement with his views, I am not going 
to oppose this nomination of Mr. Smith for the following reasons: 
Traditionally, there is a heightened level of deference given to the 
President's nominees, particularly when the position is designated to 
be filled by one party. That is particularly the case with nominees to 
the FEC, who by statute are to be the representatives of their 
political parties on that commission. Moreover, in performing our 
constitutional responsibility to provide advice and consent to the 
President's nominations, the Senate should determine whether a nominee 
is qualified to hold the office to which he or she has been nominated.
  Mr. President, it is clear to me that Mr. Smith is qualified to hold 
this office. He is clearly intellectually qualified for the position. 
He is a recognized, although controversial, scholar on election law and 
the Constitution. He is bright, articulate, and anxious to serve. 
Again, I could not disagree with him more, but to say he is not 
qualified to serve is not to have spent time reading his writings or 
listening to him. You can disagree with him--and I do vehemently--but 
he is certainly qualified to sit on the FEC. Most importantly, he has 
appeared before the Senate Rules Committee and testified under oath 
that if confirmed, he will uphold the Constitution of the United States 
and the election laws of the land.
  During Rules Committee consideration of this nominee, I asked Mr. 
Smith if, notwithstanding his personal views, was he prepared to 
enforce the election laws founded on the congressional belief that 
political contributions can corrupt elections and need to be limited, 
as allowed by law and the Constitution. Mr. Smith responded that he 
would ``proudly and without reservations'' take that oath of office.
  Finally, this Senate, and the Rules Committee in particular, have an 
obligation, in my view, to fill vacancies on the Federal Election 
Commission. Otherwise, we face gridlock and inaction by our agencies. 
The FEC is simply far too important, in my view, to be hamstrung by 
refusing to confirm a controversial but otherwise well-qualified 
nominee.
  My vote in favor of this nomination should not be read as an 
endorsement of his views. Nothing could be further from the truth. It 
is an endorsement of the process that allows our political parties to 
choose nominees who hold views consistent with their own. I regret that 
the majority party here--at least a majority of the majority party--
embraces the views they do, and nobody holds them more strongly than my 
friend and colleague from Kentucky. I think he is dead wrong in his 
views on these issues, but he represents the views of the majority 
party on this issue. They have made a choice that Bradley Smith 
reflects their views well on this issue. Therefore, they have the 
right, in my view, to have him confirmed to the seat, assuming that he 
is otherwise qualified to sit on the Commission. I would not vote for 
him if it were strictly a case of endorsing his views as opposed to 
mine. But the FEC has never been a body where that has been a litmus 
test applied to Presidential nominees.
  Whether or not this nominee is confirmed will not determine the real 
issue for Congress--and that is whether we will pass meaningful 
campaign finance reform laws to restore the public's faith in our 
elected system of Government.
  The fundamental problem we face is not whether Bradley Smith is on 
the FEC, but whether or not this body, before we adjourn this Congress, 
is ever going to address the fundamental campaign laws that some of us 
would like to see modified, including the McCain-Feingold legislation, 
which has been before this body in the past.
  It is time, in my view, to confirm these nominees to ensure that this 
agency has a full complement of dedicated, talented Commissioners sworn 
to uphold the laws on the books.
  It is time to get on with the work of the Senate to reform our 
campaign finance laws and give the FEC the resources it needs --both 
financially and statutorily--to restore the public's confidence in our 
electoral system.
  I yield the floor at this time.
  The PRESIDING OFFICER. The Chair recognizes the Senator from 
Kentucky.
  Mr. McCONNELL. Mr. President, let me say briefly to the ranking 
member of the Rules Committee, I listened carefully to his statement. I 
thank him very much for respecting the process by which we have 
selected our nominees for the Federal Election Commission. He made it 
clear that, had the choice been his, he would not have picked Professor 
Smith. I will make it clear a little later that had the choice been 
mine, I would not have picked Commissioner McDonald. This is the way 
the FEC is supposed to work. I thank my colleague for honoring that 
tradition.
  The PRESIDING OFFICER. Under the previous order, the Senate is to 
recess at 12:30.
  Mr. FEINGOLD. Mr. President, I ask unanimous consent that I be 
recognized at that point to use such time as I am allotted.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                          ____________________