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April
10, 2002, 8:30 a.m. By Amy Kauffman |
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ecently two of the
six members of the Federal Election Commission (FEC) have come under fire
for voicing their opinions about the job they have been asked to do. Both,
FEC Chairman David Mason and Commissioner Bradley Smith questioned the
constitutionality of the proposed campaign-finance-reform bill pending
in Congress. Mason gave a speech outlining difficulties in enforcing the
legislation. Smith wrote two articles detailing his objection (one in
the Wall Street Journal and one in National Review). Both
Mason and Smith acted just prior to the House vote on the Shays-Meehan
bill.
The result was a firestorm of criticism from editorial writers around the country. Mason and Smith were attacked for being openly hostile to the legislation. McCain attorney and former FEC Commissioner Trevor Potter went as far as to say "Here we have two commissioners who are supposed to work for the success of a law that they want to fail." Both raised points prior to its passage that there may be faults that should be examined further. Neither one ever stated that should the law pass they would not enforce it. But they have been criticized by reform advocates, newspaper columnists, editorial boards, and Sen. John McCain himself.
Prior to their appointments, Mason and Smith were two of the most opinionated scholars in the field of campaign-finance legislation. Their views were well documented before they were sworn into office. Both had consistently raised questions about this campaign-finance legislation since its inception seven years ago. While a scholar at the Heritage Foundation David Mason testified in opposition to the McCain-Feingold legislation before both the House and the Senate on numerous occasions. And, in March 2001, after joining the FEC, Smith published a major scholarly work, Unfree Speech: The Folly of Campaign Finance Reform which offered 304 pages of arguments against laws such as McCain-Feingold.
Many believe that as commissioners on the FEC, they should not publicly discuss matters related to election law. There is no doubt that their job is to enforce the laws guiding our campaign-finance system. But is it within their rights to ask Congress to carefully consider areas they regard as problematic? Is it their duty to question the impact of pending legislation they consider "unworkable?"
If we are to believe the best about our government, we should be assured that that the most qualified people are chosen to serve in their respected fields. A commissioner selection is a presidential appointment that requires congressional confirmation. This means that these individuals are chosen because the president believes each to be an expert in a specific area. And Congress supports this assumption.
If these individuals maintain such a high level of knowledge, shouldn't the public benefit from this expertise by seeking their opinions on matters that come under their jurisdiction? Of course. That is why these experts testify before Congress on respected matters. But what happens when Congress does not send the invitation? Should they remain silent and rubberstamp whatever legislation is passed? Should they disregard their own opinions, the same opinions that initially qualified them to these posts?
There has been a long history of commissioners who did not receive invitations, speaking out on issues that were pending before Congress. 1999, Arthur Levitt, past chairman of the Securities and Exchange Commission opposed portions of the Financial Services Modernization Act, a law that allowed banks, insurance and securities firms to enter into each other's business.
This prompted an outcry by SEC Chairman Arthur Levitt who stated the bill was bad for investors. He went on record as saying the differences in culture, enforcement, and protection between the banking and securities industries could lead to "a real danger for investors." The bill became law over these objections. In addition, Mr. Levitt battled the Senate on tighter standards in the accounting industry. His concern was that firms could not act as both consultants and auditors without compromising their own credibility. We are now dealing with the repercussions of those who ignored the warning.
Last week, Levitt's successor also had his turn before Congress. Harvey Pitt said Congress should not roll back the Public Securities Litigation Reform Act, that some House Democrats have targeted to expose fraudulence in the accounting industry and hold it to greater legal liability. Pitt Lashes Out At Media In Senate Banking Committee Hearing. He also disagreed with several proposals before the Senate Banking Committee regarding oversight of the accounting industry. These proposals included restrictions on consulting services, such as those Arthur Andersen provided to Enron.
In the 1980's it was impossible to discuss telecommunications without addressing the conflicts between Federal Communications Commission Chairman Mark Fowler and Representatives Timothy E. Wirth (D., CO.) and Representative John D. Dingell (D., Mich.), chairman of the House Energy & Commerce Committee. Fowlers focus on deregulation brought about caused one senator to say Fowler wanted to "sell the airwaves to the highest bidder." The Senate threatened to cut off funding if it carried out plan to increase the number of stations a broadcast company could own.
Former four-term FCC Commissioner James Quello also shared his opinions on a great many matters appearing before Congress. These included supporting the 1996 Telecommunications Act, relaxing broadcast-cable-telco cross-ownership, favoring the V-chip, and relaxing the curb on how many stations single licensee can own.
While Mason and Smith may not be the soothsayers that Levitt was, they should still be given the chance to have their doubts heard. If commissioners are not allowed to come forth with opinions, then the debate will only be shaped by those paid to lobby the issue.
— Amy Kauffman is a research fellow at Hudson Institute where she is the director of the Project on Campaign and Election Laws. She is also the former director of Campaign For America.