A “Radical” for the FEC?


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'sabsurd in this case. Smith, a 41-year-old law professor at CapitalUniversity in Columbus, Ohio, and an adjunct scholar at the Cato Institute,is one of the nation's foremost experts on campaign finance. Courtsregularly cite his voluminous writings. Even the Post's negative editorialconceded that he's "clearly qualified."

His crime, it seems, is challenging the assumptions driving today'scampaign finance debate. Most "reforms," he's shown, have made the systemworse -- entrenching incumbents, forcing candidates to spend more timefund-raising, disabling political amateurs and grassroots activists, andreducing political accountability. But above all, efforts to ratchet upregulation have eroded First Amendment liberties.

Rather than add more regulations, Smith urges deregulation. He would doaway with limits on contributions and spending and require simply thatcandidates fully disclose both. Sunshine, in short, is the bestdisinfectant. But that undercuts the regulatory gospel of "goodgovernment" reformers like Common Cause, Democracy 21, and the BrennanCenter for Justice. Their June 3 press release and open letter to Clintondenounced Smith as "not fit to serve" due to his "radical" views.

But Smith's opponents may have overreached, for they've now opened a debateover who's the "radical," and a number of prominent experts have sprung toSmith's defense. Thus, Brooklyn Law School professor Joel Gora, alsogeneral counsel of the New York Civil Liberties Union, notes that "far frombeing 'radical,' Smith's views have prevailed in the courts far more oftenthan [those of his] 'reform' opponents." And the Brennan Center's ownlegal director, New York University Law School professor Burt Neuborne, whowasn't consulted before the Center joined the attack on Smith, had writtenpreviously about "Smith's excellent work in debunking the status quo."Truth be told, the real radicals are those who've tried to impose theirnotion of "reform" by filing a spate of lawsuits based on far-fetched legaltheories. Indeed, the Brennan Center and Common Cause have been on thelosing side of virtually every campaign finance case they've pursued. Infact, the FEC has tried so often to expand its authority that in a recentcase the federal appeals court took the extraordinary step of ordering itto pay the other side's legal fees.

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

Since its creation nearly a quarter of a century ago, the FEC has been avirtual captive of "good government" groups. At their urging it has wagedwar on our free speech rights, restrained only by the determination ofjudges to uphold the Constitution. Smith's nomination is controversialbecause it threatens that cozy arrangement.

Until now, Common Cause and its allies have been able to define "campaignfinance reform" in the popular mind -- not least because they've dominatedthe debate in the media, whose relative power would be vastly enhanced bymore restrictions on the rest of us. Brad Smith's candidacy for the FECpromises at long last to launch a serious debate about real reform. If thathappens, maybe reason would then replace the heat that now surrounds thedebate. And maybe the president's man will get to the UN after all.

Roger Pilon

Roger Pilon is vice president for legal affairs at the Cato Institute and is director of Cato's Center for Constitutional Studies.