July 12, 2005,
EDITOR'S NOTE: This piece appears in the July 18th, 2005, issue of National Review.
Five years ago, the hottest confirmation fight in Washington wasn’t over a judicial nominee, or an ambassador, or a cabinet choice. It was, instead, over a relatively unexalted position on the Federal Election Commission, and it involved a law professor named Bradley Smith, who would soon become, after Sen. Mitch McConnell, the man most hated by what is sometimes known as the campaign-finance-reform community.
Smith earned the reformers’ antipathy by arguing, forcefully and persuasively, that the McCain-Feingold campaign-finance-reform bill was hopelessly misguided. In fact, Smith believed that most campaign-finance-reform laws, going back to the landmark Federal Election Campaign Act of 1974, were hopelessly misguided. “When a law is in need of continual revision to close a series of ever-changing ‘loopholes,’” Smith wrote in the Wall Street Journal in 1997, “it is probably the law, and not the people, that is in error.” Smith suggested that simply eliminating the Federal Election Campaign Act was the best thing to do.
To any dedicated reformer, those were fightin’ words. But as a professor at Capital University in Columbus, Ohio, Smith wasn’t too dangerous; he was confined to activities like appearing at panel discussions and writing op-eds. But in 1999, then-majority leader Trent Lott, along with McConnell, chose Smith as the GOP nominee to the election commission. That’s when Democrats went nuts.
In an open letter to President Clinton, leading reformers charged that putting a critic like Smith on the FEC amounted to “an act of utter disdain and disrespect for the laws.” How could someone who had criticized the campaign-finance laws possibly enforce them? Senate Democrats blocked his confirmation, starting a months-long standoff. Finally, a deal was struck: Democrats agreed to end the Smith blockade in return for Republicans’ allowing 16 of Clinton’s judicial nominations to go forward. Thus Bradley Smith became the most expensive FEC commissioner in history.
Now, his five-year term is over, and Smith is leaving the commission to return to Capital University. Recently, he sat down at the FEC’s office in downtown Washington for a look back at the major issues of his time in the capital.
Actually, there’s been only one truly major campaign-finance issue during Smith’s time at the FEC, and he hasn’t changed his mind about it. “I think McCain-Feingold has been demonstrably a failure,” he says. “I don’t know how people could say much else. On the other hand, I don’t know that it’s been as harmful as some people thought it would be, in part because the outlet remains there for 527s.” By that, Smith is referring to the outside-the-parties groups that were allowed to accept unlimited contributions: enormous groups like America Coming Together, the pro-Democratic voter turnout group that, with sister organization The Media Fund, spent $200 million trying to defeat George W. Bush, and less-enormous groups like the Swift Boat Veterans for Truth, which spent $22 million on anti-Kerry ads.
Reformers were united in wanting Smith and the FEC to shut down the 527s during the campaign. And because Democrats got an early and very successful start on 527 fundraising, some Republicans, who might otherwise have adopted a principled view of contribution limits as limits on political speech, also wanted to muzzle the 527s. George W. Bush himself said that that would be a good idea. But Smith, who believed strongly that 527s were legal under McCain-Feingold, said no. “The law is not whatever John McCain decides the issue is that day,” he says. “It’s what they actually passed in Congress.”
And besides, Smith believed then and believes now that free political speech is simply good for politics, regardless of whether 527s are involved. “Let’s put it this way,” he says. “I think it’s a great thing that a bunch of average, middle-class citizens like the guys at Swift Boat Veterans for Truth can influence an election. And I think that it’s probably a fine thing that a group like America Coming Together is out there registering voters.”
But what about all those mega-contributions from the likes of George Soros, who gave $20 million to America Coming Together? Does Smith have a problem with that?
Well, what if Soros had given $40 million? Would that have been a problem?
Statements like that drive the reformers to distraction. And Smith’s views made it inevitable that he would have some sort of run-in with the man most responsible for present-day campaign-finance reform.
“McCain has always refused to meet with me,” Smith says. “I tried to meet him once at a public hearing. He was at the table, and I went up and I said, ‘Senator,’ and I held out my hand. And he instinctively took my hand, and then he looked up and realized who it was, and he yanked his hand away and said, ‘I’m not going to shake your hand. You’re a bully and a coward, and you have no regard for the Constitution. I don’t have to talk to you. I’m not going to talk to you.’ It was right in front of a large number of people, so I don’t think he wants to talk to me.”
“He said you were a bully and a coward?”
“Uh-huh. And corrupt, too. He always calls me corrupt. And my wife says, ‘If you’re corrupt, you’re the worst corrupt person I’ve ever seen. Where are the fur coats? The watches? The cars? The fancy trips?’”
Smith isn’t finished on McCain. After watching the senator for years, Smith believes McCain doesn’t truly understand his own signature issue. “He is woefully ill informed on campaign-finance issues,” Smith says. “I have seen him repeatedly misstate what the law is, misstate what court decisions held, and I think that’s one reason he gets so angry when he talks about it. It’s because he doesn’t really understand what a complex issue it is, what a difficult issue it is, he doesn’t understand the court hearings, he doesn’t understand how we’ve gotten where we are so he just gets mad.”
These days, McCain is promoting a new bill that would subject 527s to contribution limits. Like Mitch McConnell and other reform opponents, Smith believes that that would just send the big money elsewhere, perhaps to so-called 501(c)(4) organizations, which are allowed to accept unlimited contributions and engage in some political activity. Smith also worries about future attempts to regulate political speech on the Internet, where big media companies could be given a First Amendment press exemption on speech limits, while smaller website operators might be forbidden to make overtly political statements.
Whatever happens, Smith won’t be around to enforce the rules. And he doesn’t seem fully convinced that his time in Washington has been well spent. When asked whether serving on the FEC has been a worthwhile exercise, Smith at first laughs and doesn’t answer. Then he asks, “From what perspective?” Finally he explains that from a policy perspective, he is most proud of his stand against regulating the 527s. “I think if I had not taken the lead and said, ‘This is not a proper interpretation of the law,’ it would have rolled through.” The 527s would have been regulated in mid-campaign, and chaos might well have ensued.
Personally, he has learned a few things about how Washington works but not that much. “Had there not been such an effort to get me confirmed,” Smith says, “I quite likely might have left in the middle of my term, figuring from a personal standpoint that I had learned what I felt I could learn.”
Still, Smith believes it is important that people like him, who question the wisdom of laws like McCain-Feingold, take part in enforcing those laws. “I think that it’s clearly wrong that enforcement of the law should be left to zealots,” he says. “If the argument is that you can’t be on the commission if you don’t believe in these laws, that would seem to suggest that you can’t be on the commission if you don’t believe in some of these laws, because you can’t be trusted to enforce those, either. And that would mean that no person who ever wanted to deregulate could ever serve on a commission. It would be a one-way ratchet.”
And that would lead to regulation on top of regulation much the situation that exists on many government commissions today and, for the FEC at least, a loss of perspective about what political campaigns, and campaign laws, are all about. “I think we would benefit by thinking of the First Amendment less as a sort of bizarre, libertarian impediment to badly needed regulation than as a well-thought-out approach to how political activity ought to work,” Smith says. “And the basic premise is: It is very dangerous to give the government the power to determine who gets to speak and who doesn’t.”
Byron York, NR's White House correspondent, is the author of the book The Vast Left Wing Conspiracy: The Untold Story of How Democratic Operatives, Eccentric Billionaires, Liberal Activists, and Assorted Celebrities Tried to Bring Down a President and Why They'll Try Even Harder Next Time.