A “Radical” for the FEC?

July 30, 1999 • Commentary

The heated campaign finance reform debate just got hotter, thanks to a little side‐​show now going on that speaks volumes about the larger issues. When Senate Majority Leader Trent Lott picked Professor Bradley A. Smith a while back to fill a vacant GOP seat on the Federal Election Commission, the reform crowd went ballistic. “An insult,” cried the New York Times. Wall Street Journal columnist Al Hunt called Smith “unfit” and “radical” — a line the Washington Post repeated — while the Atlanta Constitution chimed in with “flat earth society poobah” and the Syracuse Post‐​Standard likened Smith to David Duke, the Unabomber, and Slobodan Milosevic. President Clinton, not unmindful of his friends, has been sitting on the nomination ever since — prompting Lott, finally, to put a hold on Clinton’s nomination of Richard Holbrooke as UN ambassador.

What’s going on here? Demonization is not uncommon in Washington, but it’s absurd in this case. Smith, a 41‐​year‐​old law professor at Capital University in Columbus, Ohio, and an adjunct scholar at the Cato Institute, is one of the nation’s foremost experts on campaign finance. Courts regularly cite his voluminous writings. Even the Post’s negative editorial conceded that he’s “clearly qualified.”

His crime, it seems, is challenging the assumptions driving today’s campaign finance debate. Most “reforms,” he’s shown, have made the system worse — entrenching incumbents, forcing candidates to spend more time fund‐​raising, disabling political amateurs and grassroots activists, and reducing political accountability. But above all, efforts to ratchet up regulation have eroded First Amendment liberties.

Rather than add more regulations, Smith urges deregulation. He would do away with limits on contributions and spending and require simply that candidates fully disclose both. Sunshine, in short, is the best disinfectant. But that undercuts the regulatory gospel of “good government” reformers like Common Cause, Democracy 21, and the Brennan Center for Justice. Their June 3 press release and open letter to Clinton denounced Smith as “not fit to serve” due to his “radical” views.

But Smith’s opponents may have overreached, for they’ve now opened a debate over who’s the “radical,” and a number of prominent experts have sprung to Smith’s defense. Thus, Brooklyn Law School professor Joel Gora, also general counsel of the New York Civil Liberties Union, notes that “far from being ‘radical,’ Smith’s views have prevailed in the courts far more often than [those of his] ‘reform’ opponents.” And the Brennan Center’s own legal director, New York University Law School professor Burt Neuborne, who wasn’t consulted before the Center joined the attack on Smith, had written previously about “Smith’s excellent work in debunking the status quo.” Truth be told, the real radicals are those who’ve tried to impose their notion of “reform” by filing a spate of lawsuits based on far‐​fetched legal theories. Indeed, the Brennan Center and Common Cause have been on the losing side of virtually every campaign finance case they’ve pursued. In fact, the FEC has tried so often to expand its authority that in a recent case the federal appeals court took the extraordinary step of ordering it to pay the other side’s legal fees.

Thus, the real concern of the Common Cause crowd is not that Smith will be too radical but that he won’t be radical enough. They’re afraid that if he takes a seat on the FEC he won’t pursue the radical “reform” theories the courts have consistently rejected as violating the First Amendment. On that score, they’re right. As Smith said in a recent interview, “I will enforce existing laws, but I will not go along with wasting taxpayers’ dollars to pursue legal theories that have been rejected [as unconstitutional] by federal courts.”

Since its creation nearly a quarter of a century ago, the FEC has been a virtual captive of “good government” groups. At their urging it has waged war on our free speech rights, restrained only by the determination of judges to uphold the Constitution. Smith’s nomination is controversial because it threatens that cozy arrangement.

Until now, Common Cause and its allies have been able to define “campaign finance reform” in the popular mind — not least because they’ve dominated the debate in the media, whose relative power would be vastly enhanced by more restrictions on the rest of us. Brad Smith’s candidacy for the FEC promises at long last to launch a serious debate about real reform. If that happens, maybe reason would then replace the heat that now surrounds the debate. And maybe the president’s man will get to the UN after all.

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