[Congressional Record (Bound Edition), Volume 146 (2000), Part 7]
[Senate]
[Pages 9013-9019]
[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--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.

[[Page 9014]]

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 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.

[[Page 9015]]

  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 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

[[Page 9016]]

     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.
       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.
       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

[[Page 9017]]

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.
  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

[[Page 9018]]

     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.
  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.

[[Page 9019]]

  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.

                          ____________________