Prof. Smith Goes to Washington

Federal Election Commission member Bradley A. Smith takes on campaign finance laws.

The campaign finance reform establishment went absolutely insane in the spring of 2000. That’s when Sens. Mitch McConnell (R-Ky.) and Trent Lott (R-Miss.) worked a deal to persuade President Bill Clinton to nominate Bradley A. Smith, a professor of law at Capital University in Columbus, Ohio, to the Federal Election Commission. (In exchange for the Smith nomination, the senators guaranteed a vote on 16 Clinton appointees to the federal bench.)

Vice president and presidential candidate Al Gore—remember him?—took time out from scaring senior citizens about losing Medicare to promptly declare Smith “unfit for office,” even though his own administration had nominated the guy. The Senate’s dynamic duo on campaign finance issues, Sens. John McCain (R-Ariz.) and Russell Feingold (D-Wis.), similarly declared its staunch opposition. “Sending Brad Smith to the FEC is akin to confirming a conscientious objector to be sec�re�tary of defense,” huffed Vietnam vet McCain during a marathon, 10-hour debate over Smith’s confirmation. “I stand proudly by Theodore Roosevelt in believing the 1907 [campaign finance] reforms were valid,” McCain continued. “Mr. Smith does not.” Feingold expressed a similar sentiment, if in a more hackneyed formulation: “Prof. Smith on the FEC would really be a case of the fox guarding the hen house.”

Newspaper editorialists were conflicted over whether the Harvard-educated and widely published prof was technically fit for the post. “Smith is clearly qualified,” opined The Washington Post. “His background in no way qualifies him for a spot on the commission he would just as soon abolish,” wrote The Atlanta Journal and Constitution. But virtually all agreed that he was the wrong person for the job. The Post explained the reasoning well: “He simply does not believe in federal election law.”

That may well be the case. Before signing on to the FEC, Smith wrote extensively on the mind-numbing topic of campaign-finance and election law. His findings were quite radical, at least from the point of view of professional reformers and regulators. Smith concluded not only that restrictions on campaign donations are unconstitutional, but that they degrade America’s political process by strangling grassroots efforts in a tangle of red tape. Moreover, further efforts to regulate campaign contributions increase the advantage of professionals and insiders over ordinary citizens, provide the press with more power, and increase the already considerable electoral advantage of incumbents.

“We must limit, fine, and penalize. And then all will be well. We will weed out corruption, and have true political equality,” said Smith in a speech last year at Catholic University, mocking the mindset of reformers. “I would suggest to you that campaign finance regulation is like Frankenstein’s monster, well-intentioned, but hopelessly misguided and ultimately irredeemable, yet impossible to kill, and creating havoc wherever it goes."

Make no mistake: Smith thinks the monster needs to die. In a 1997 Wall Street Journal opinion piece, he called for a repeal of the Federal Elections Campaign Act, the very law the FEC was created to administer. After being confirmed as an FEC member in May 2000, Smith hardly toned things down. He was sworn into office by Judge James L. Buckley, the former New York senator whose challenge to the 1974 law culminated in the precedent-setting Supreme Court case Buckley v. Valeo. (To underscore his stance, Smith held his swearing-in ceremony at the Cato Institute, which is highly critical of campaign finance laws.)

Earlier this year, Smith published Unfree Speech: The Folly of Campaign Finance Reform (Princeton). Washington Editor Michael W. Lynch spoke with Smith in April, just as the Senate passed the McCain-Feingold campaign finance reform bill. McCain-Feingold, the most expansive campaign finance legislation in years, seeks to outlaw so-called soft money contributions to political parties, restrict corporations and unions from running issue ads, regulate negative campaign advertisements by candidates, and restrict issue advertising in the last 60 days of an election cycle. A similar bill, which has passed the House twice in previous sessions, is expected to hit the House floor again this summer.

REASON: You’ve been at the FEC for about a year now. Do you like the job?

Bradley A. Smith: I do. I do enjoy the job.

REASON: During your confirmation process, critics charged you were unfit for the job. They said, How could you enforce a law you didn’t believe in? Some are still saying that. How do you respond?

Smith: I get tired of hearing it. People always say that in an accusatory manner. It’s a very pernicious idea. It’s the same charge that has been used against Atty. Gen. John Ashcroft and Secretary of Energy Spencer Abraham. It’s the argument that the law can only be enforced by zealots. It’s pernicious because it suggests that in fact there is no such thing as a rule of law and we can never trust people in power to restrain themselves in any way. It cuts against the very idea that makes our country work. It makes it very hard to improve governing systems if people think it is the norm for people in power to do whatever they want.

REASON: To clarify: Even if you think the contribution limits are unconstitutional, you are going to enforce them because that’s the way the law is both written and interpreted.

Smith: Right. I would add that I have also taken an oath to uphold the Constitution and I don’t think the Supreme Court has a monopoly on the Constitution. I think at some point an official, even an appointed official, has the ability to say, “I’m just not going to do that.” Maybe he needs to resign, but I don’t think he needs to. He can say, “I’m not going to do that. I’m in this position. I’m entitled to be in this position, I’m not going to do that.”

That said, I think you have to be very hesitant in doing that. It needs to be an extreme case. And the reason is because in our process, ultimately we take the Supreme Court as the last arbiter of the Constitution. If the Congress has decided a law is constitutional and they’ve passed it, the president has decided it’s constitutional and he’s signed it, and the Supreme Court has decided it’s constitutional and they’ve upheld it, proclaiming a law unconstitutional is something an appointed bureaucrat would not want to take lightly, to say the least.

REASON: How have your views changed since you’ve been in office?

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