The New York Times called Smith’s nomination “an insult.” The Washington Post said his writings were “quite radical,” which was not a compliment. The Atlanta Journal Constitution wrote that his nomination was “tantamount to assigning a Flat Earth Society poobah a seat on the next space shuttle adventure.”
The politicians echoed the editorial pages. Senator John McCain began his long war with Smith by saying, “sending Brad Smith to the FEC is akin to confirming a conscientious objector to be secretary of defense.” Vice President Al Gore argued that Smith was “unfit for public office” despite the fact that Clinton had nominated Smith.
Senators have the right to put a hold on nominees to the FEC, and McCain did so in Smith’s case for several months. Eventually Republican leaders traded five judgeships for Smith’s ascension to the FEC.
Smith was not a typical nominee to the commission. He had not practiced election law in Washington while forming strong ties to party leaders. Instead he had pursued an academic career: a law degree from Harvard, a position at Capital University School of Law, several articles in leading law reviews, and (full disclosure) policy analyses for the Cato Institute. While his nomination lingered in the Senate, Smith finished his book Unfree Speech.
His scholarship argued that campaign finance regulation ran counter to the clear meaning of the First Amendment. Powers-that-be in campaign finance regulation were not persuaded. As a prominent election lawyer put it, “Had [Smith] been a well-known academic reformer — had he come to the FEC having written about the need for expanded regulation and militant regulation — his press would have been good and his learning would have been cited as much to his credit. As his views ran the other way, he was regularly viewed as an ‘ideologue’ and too biased to function impartially and appropriately as a Commissioner.”
Smith took on a powerful but small lobby. Since Watergate, the campaign finance issue has been the exclusive property of the “reform community” composed of groups like Common Cause (which claims 200,000 members) and organizations like Democracy 21 and the Center for Responsive Politics, which are largely funded by foundations rather than members. The reformers won big in 1974. Common Cause founder John W. Gardner managed to redefine Watergate as a campaign finance scandal. Two months after Nixon resigned, Congress passed comprehensive controls on money in elections, and the courts upheld most of these restrictions.
No new legislation followed, but the reform community remained influential inside the Beltway. Just as Smith began publishing his analysis of campaign finance laws, reformers began a new push for more restrictions. Several wealthy foundations led by the Pew Memorial Trusts decided to devote enormous sums to passing new restrictions on campaign finance. The movement also found its voice in Senator McCain, a Republican trying to atone for his part in the Keating Five Scandal of the early 1990s. This coalition succeeded in passing McCain-Feingold in 2002.
SMITH’S EXPERIENCE MIRRORS the struggles of conservatism in general. He went up against an entrenched establishment with money and a sympathetic media. His reflections on his time at the FEC may tell us something about the future of the conservative cause.
Years in Washington have sharpened Smith’s awareness of a few key facts. With particular opprobrium reserved for the New York Times, he charges that reporters come to the issue of campaign finance with overriding biases, and those biases are shared by their editors. Many reporters are willing to fire off preconceived pro-campaign finance reform stories, he says, even if they know the story is wrong, or absurdly oversimplified.
The ink-stained wretches are naive in Smith’s opinion. They refuse to consider the possibility that campaign finance laws might suppress political activity in favor of the interests of incumbent members of Congress. Though deeply cynical about politics, journalists are somehow never cynical about the motivations behind the latest proposals to restrict money in politics.
The people who work in Washington, he says, have little idea of the consequences of the rules they make. In particular, campaign finance regulators do not worry much if complex rules make it harder for average Americans to engage in politics.
Members of the campaign finance coalition judge the political process by its outcomes. Since they all lean left, Smith argues, they believe that a political process reflecting the will or the people will lead to leftist results. When conservatives win elections or legislators lean right, these groups conclude the system has been corrupted by money. Corruption has thus lost all meaning apart from sheer political advantage.
Nearing the end of his run, Smith confesses to feeling “sorry” for his arch nemesis McCain. The senator, he argues, was less important in passing McCain-Feingold than the backing provided by the liberal foundations and front-page coverage contributed by the New York Times. The final draft of legislation led to the very 527 groups that McCain now rails against.
But Smith argues that those loopholes do not make the legislation a toothless tiger. Michael Moore’s Fahrenheit 9/11, a movie that attacked President Bush, would have violated the law had it been shown on television two months before an election. McCain-Feingold prohibits “electioneering communications” mentioning a presidential candidate and sponsored by a corporation. For a time it seemed the FEC would have to go after Moore’s movie, but according to Smith, the agency decided to stay clear of the issue out of fear of losing in court while generating terrible publicity. Concerns about free speech have been banished to the furthest reaches of the agency’s thinking.
After my exit interview with Smith, I solicited comments from several colleagues. Some Republicans complained he did not effectively create a coalition to counter the reformers. His friends say that Smith’s temperament was not apt for political success. They note he is not especially sociable or accommodating, and something of a bookish and diffident intellectual.
Smith became more politically skilled over the course of his term. This year, for instance, he managed to bring to the public’s attention the question of campaign finance law and free speech on the Internet. For two memorable days in July, the FEC heard bloggers from the left (Markos Moulitsas of liberal blog Daily Kos) and the right (Mike Krempasky of RedState.org) and other points along the political spectrum demand protection for their speech on the Internet. The hearings would not have happened without Smith’s warnings about the implications of McCain-Feingold.
FOR NOW, THE RESISTANCE offered has complicated if not stopped the FEC drive toward restrictions. Smith argues that the Internet fight is a classic example of the irresponsibility of Congress. Members want regulation of speech on the Internet, but they are afraid to propose such controls directly. They hope that the FEC will do their dirty work in the name of preventing circumvention of the current law.
Smith was a de facto Republican appointee to the FEC but many Republicans have been frustrated by his refusal to defer to his party. When he began his term, partisanship and libertarian principle in campaign finance went well together from the top to the bottom of the GOP. Senator Mitch McConnell had led a long fight against campaign finance regulation. Eighty percent of Republicans in Congress voted against McCain-Feingold.
As the 2004 election approached, however, party leaders decided McCain-Feingold could help the cause. By 2003, the Democrats had concluded that the soft money ban in McCain-Feingold would hurt their prospects for the upcoming election. They began forming 527 groups (entities created by that section of the tax code) to raise and spend soft money. The Republicans might have done the same, but party leaders decided instead to persuade the FEC to prohibit fundraising by the 527s.
Smith refused to go along with the about-face in Republican policy. In a March 2004 speech to the Republican National Lawyers’ Association, he urged the GOP to embrace its deregulatory roots in campaign finance. The alternative, Smith avowed, would be contributing to an “anti-freedom, pro-big government intellectual environment for some perceived, but wholly uncertain, political gain.” An op-ed and congressional testimony followed, in defense of the right of 527s to spend money on politics.
Smith thus managed to part ways with the Republican leadership without “growing” in the eyes of his enemies. As one Democratic election lawyer put it, “Brad’s opposition to 527 regulations put him at odds with his party on an issue that was very important to them at an important time, in the middle of a Presidential campaign. But no one much applauded him. The reform community did not do so, and he will never be the toast of the Democrats.”
According to Republican election lawyer Cleta Mitchell, some Republican leaders thought McCain-Feingold would prevent the flow of money to outside groups like the 527s. It is hard to understand why Republicans would have assumed that. In late 2002, everyone familiar with campaign finance expected 527 groups to replace soft money fundraising. Republican leaders expected Smith and the FEC to “fix” the problem.
Smith is now philosophical about his problems with the Republican leadership recalling Harry Truman’s view about friends, Washington, and dogs. But last year he plausibly argued that Republican support for prohibiting 527s had prevented the real possibility of liberalizing McCain-Feingold. Their about-face will make it harder to allow more free political speech in the future.
Campaign finance is now more regulated by the federal government than it was when Brad Smith took office. Congress passed McCain-Feingold, and the Supreme Court then upheld the law’s incredible restrictions. Many would take that as cause for despair.
BUT SMITH THINKS the worst might be over. The House GOP now seems unlikely to support prohibiting 527 groups even though doing so might well serve the party’s interests. Smith’s writings have persuaded Republicans to be wary of regulation. Many Democrats are chafing under the current campaign finance regime and would like to loosen up some of the more onerous McCain-Feingold restrictions.
That combination of principle and enlightened self interest speaks well of Smith’s willingness to argue with Received Wisdom — to lay out the case again and again against unfair and unwarranted limits of free speech. Brad Smith refused to grow in office and we are all a little better off for it.