[Pages S4255-S4261]
From the Congressional Record Online through the 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 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
[[Page S4256]]
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 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
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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 at 310-825-5148, and at
<lowenste@mail.law.ucla.edu>
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.
[[Page S4258]]
____
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
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.
[[Page S4259]]
Please contact me at (219) 631-9407 or at
john.c.nagle.8@nd.edu 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 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.
[[Page S4260]]
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 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
[[Page S4261]]
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.
____________________