Heated debate over appointment amuses FEC candidate

Friday, August 13, 1999

Bradley Smith...
Bradley Smith

For nearly a half dozen years, Bradley Smith has enjoyed relative anonymity outside of the campaign-finance reform arena, although his writings and congressional testimony quietly advanced the idea that efforts to change the way Americans pay for elections violate the First Amendment.

But in recent months — thanks to the Republican Party's push for the law professor's appointment to the Federal Election Commission — Smith has suddenly seen his name splashed across the editorial pages of The Washington Post, The New York Times and the Wall Street Journal.

Most of the words that surround it aren't kind.

The Post labeled Smith as a “radical,” while the Times called his selection “an insult.” The Atlanta Journal-Constitution described him as the equivalent of a “flat earth society poobah.” The Syracuse Post-Standard compared Smith to David Duke, the Unabomber and Slobodan Milosevic.

“I just find it more amusing than anything else,” Smith, an assistant professor at Capital University Law School, said. “I just sit back here and watch from my perch in Columbus, Ohio.”

Smith's “radical” concept? That past efforts at campaign finance reform severely damaged the election process in the United States and that current efforts would make it even worse. Most importantly, he believes that restrictions proposed in bills before Congress this session would further infringe on the First Amendment guarantee of free speech.

Smith's views offend some in Washington, D.C., so much that leading reform groups like Common Cause and The Brennan Center for Justice call him “the single most aggressive advocate for deregulation of campaign finance.”

“Ask any scholar of campaign finance who has spilt the most ink denouncing our current campaign finance laws: the answer will be Brad Smith,” wrote E. Joshua Rosenkranz, executive director of The Brennan Center in a June 3 position paper. “Ask any enemy of campaign finance laws to identify the most sought-after witness to make the case to Congress: Brad Smith will be the top answer.”

But Smith, unfazed, says he has the time and energy to ride out the criticism, waiting until the White House either confirms his appointment or demands that the Republicans submit another name.

GOP officials tapped Smith last January to fill the vacancy created when Commissioner Lee Ann Elliott leaves the FEC in September. Elliott's six-year commission ended in May, but she agreed to remain for several more months until a new appointee could take the seat.

Supporters of campaign-finance reform decry Smith's selection, pondering how the professor could uphold the campaign laws he so avidly opposes. The debate grew even more heated when Senate Majority Leader Trent Lott, R-Miss., hinted earlier this summer that he would put a hold on President Clinton's nominee for ambassador to the United Nations.

The Senate last week approved the nomination of Richard Holbrooke to the ambassadorship, but Smith's appointment remains in the works.

Smith says he's somewhat amazed at the opposition, noting that Common Cause in particular has demanded more White House appointments of citizens without strong party ties.

Smith, a Harvard Law School graduate, notes: “I've never been active in the Republican Party, although I'm a member. And I've never held office in the party. But [my critics] seem quite happy for the commission to go with the seat empty. They appear quite open to taking a political operative than let me get on the commission.”

The 41-year-old professor actually got a late start in campaign-finance reform, first teaching election law soon after arriving at Capital in 1993.

“It's one of those things that the more I read and the more I thought about it, the more I became convinced that what passes as common wisdom is not generally correct,” Smith said.

Around the same time, the family of a Westerville, Ohio, woman had successfully petitioned the U.S. Supreme Court to hear a case involving the anonymous distribution of political leaflets. Smith honed his interest in election law, criticizing Ohio officials for fining the woman.

In 1995, the U.S. Supreme Court ruled in McIntyre v. Ohio Election Commission that government cannot constitutionally prohibit the distribution of campaign literature that does not contain the name and address of the person issuing it.

Since then, Smith has testified on several occasions in congressional hearings against campaign-finance reform legislation. And he has written extensively — for law journals, for the libertarian think tank Cato Institute and for the editorial pages of USA TODAY and the Wall Street Journal — on the problems that he sees with the reform efforts.

Roger Pilon, vice president for legal affairs at the Cato Institute, praises Smith as a “breath of fresh air” in the campaign-finance debate.

“He has argued convincingly that the burden of regulation has fallen most sharply on political amateurs and grass-roots activists who lack the time, technical know-how, and resources to comply with heavy regulation,” Pilon wrote in a July 30 position paper. “But above all, his writings have demonstrated time and again how efforts to ratchet up regulation by closing 'loopholes' have eroded First Amendment liberties.”

Pilon decries the “radical” description of Smith, noting that the courts have sided with Smith's opinions in nearly every decision since the landmark Supreme Court decision in Buckley v. Valeo in 1976.

But The Washington Post noted in a June 6 editorial that, while Smith agreed with the part of Buckley striking down candidate spending limits, the professor had said the court erred by not striking down contribution limits as well.

“Given his belief that nearly all campaign finance regulation is wrongheaded, it is hard to imagine him seeking more robust enforcement,” the editorial reads. “It is more plausible to suspect that he would try to move the law in a direction matching his libertarian views.”

Smith says his job as an academic requires him to suggest alternative approaches to the current campaign-finance system. His role as a commissioner, he says, would be much different.

“As an FEC commissioner, I'm not going to sit on the commission and not enforce what is the law,” Smith said. “But I'm also not going to sit and enforce what is not current law of the land.”

And that means, he said, he would not enforce the bans that reformers are seeking unless they became law. These include proposed restrictions on television ads and political party spending.

In the whole campaign-finance debate, Smith says, the enthusiasm of newspaper editors for reform often surprises him. Many, he says, don't see how the issue could turn back and bite them. Lawmakers in several states, including Ohio, have entertained legislation that would forbid newspapers from making election endorsements.

“It seems so inconceivable that [restrictions on newspaper endorsements] could happen,” Smith said. “But I think it was inconceivable 30 years ago that you couldn't mention the name of an officeholder when you talk about him in an ad 30 days before an election. But that's what we're talking about today.”