Opening Statement of Chairman McConnell
FEC Nominations Hearing
March 8, 2000
It is my distinct honor to preside over this hearing today. Let me say at the outset that I believe Congress has given the Federal Election Commission one of the toughest federal mandates in all of America, that is: to regulate the political speech of individuals, groups, and parties without violating the First Amendment's guarantee of freedom of speech and association.
Over the past quarter-century, the FEC has had difficulty maintaining this all-important balance and has been chastised -- even sanctioned -- by the federal courts for overzealous prosecution and enforcement. Overzealous prosecution and enforcement that treated the Constitution with contempt and trampled the rights of ordinary citizens.
In light of the FEC's congressionally-mandated balancing act and the fundamental constitutional freedoms at stake, Congress established the balanced, bipartisan six-member Federal Election Commission.
The law and practice behind the FEC nominations process has been to allow each party to select its FEC nominees. Republicans pick Republicans. Democrats pick Democrats. As President Clinton said a few weeks ago, this is "the plain intent of the law, which requires that it be bipartisan and by all tradition, that the majority make the nomination."(1)
Typically, Republicans complain that the Democratic nominees prefer too much regulation and too littlefreedom, while Democrats complain that the Republican nominees prefer too little regulation and too much freedom.
Ultimately both sides bluster and delay a bit, create a little free media attention, and then move the nominees forward. In fact, the Senate has never voted down another party's FEC nominee in a floor vote or even staged a filibuster on the Senate floor.
At the end of the day, the process serves the country well. The FEC gets a few commissioners that naturally lean toward regulation and a few commissioners that naturally lean toward constitutionally-protected freedoms. And the country gets a six-member bipartisan Federal Election Commission to walk the critical fine line between regulation and freedom.
Let me say that I sincerely hope that we can uphold the law and tradition that President Clinton invoked when he sent these two nominees to the Senate.
After all, Professor Smith's views are similar to the Republicans who have gone before him. And, Commissioner McDonald's views are similar to those he himself has held for the past 18 years as one of the Democrats' commissioners at the FEC. In fact, Commissioner McDonald's views are so consistent with and helpful to the Democratic Party that former Congressman and current top advisor to the Gore campaign Tony Coelho has hailed Commissioner McDonald as "the best strategic appointment" the Democrats ever made. So, notwithstanding the bluster and delay, these two nominees largely represent their parties' long line of past FEC Commissioners.
The questions before the Committee this morning should be:
Flood of Support for Professor Smith
I would like to dedicate the remainder of my opening comments this morning to reading a few excerpts from the flood of letters I have received in support of Professor Smith since he was nominated.
I want to say to you directly, Professor Smith, that the professional and personal esteem in which you are held by constitutional law scholars and election law experts is evidenced by the dozens of letters I have received urging the Senate to confirm you. I would like to ask unanimous consent that these letters of support that I have here this morning be entered in the record and ask my staff to make copies available for all members of the Committee and the press.
Even staunch advocates of reform, including two past board members of Common Cause, have written in support of your nomination. These many letters attest to the central role your scholarship has played in mainstream thought about campaign finance regulation and make clear that no one who knows you personally or professionally, including self-avowed reformers, believes that you will fail to enforce the election laws as enacted by Congress or to fulfill your duties in a fair and even-handed manner.
LETTERS IN SUPPORT OF PROFESSOR BRADLEY A. SMITH
Mainstream Views
All of the scholars that have written urging the confirmation of Professor Smith believe that his scholarly work is not radical but rather well-grounded in mainstream First Amendment doctrines and case law. Let me share with you a few examples of what these experts say:
1. Professor Daniel Kobil - Capital Law School, Reform Advocate and Past Director of Common Cause, Ohio
"Groups seeking to expand campaign regulations dramatically might have misgivings about Brad's nomination. However, I believe that much of that opposition is based not on what Brad has said or written about campaign finance regulations, but on crude caricatures of his ideas that have been circulated. . . . I think that the FEC and the country in general will benefit from Brad's diligence, expertise, and solid principles if he is confirmed to serve on the Commission."
2. Profesor Larry Sabato - Director of the University of Virginia Center for Governmental Studies, appointed by Senator George Mitchell to the Senate's 1990 Campaign Finance Reform Panel
"Contrary to some of the misinformed commentary about professor Smith's work and views, his research and opinions in the field of campaign finance are mainstream and completely acceptable. For example, Professor Smith has argued in several of his academic papers for a kind of deregulation of the election rules in exchange for stronger disclosure of political giving and spending. This is precisely what I have written about and supported in a number of publications as well. Bradley certainly supports much of the work of the Federal Election Commission and understands its importance to public confidence in our system of elections. I have been greatly disturbed to see that some are not satisfied to disagree with Professor Smith and make those objections known, but believe it necessary to vilify the professor in an almost McCarthyite way. I do not use that historically hyper-charged word lightly, but it applies in this case. Any academic with a wide ranging portfolio of views on a controversial subject could be similarly tarred by groups on the right or left."
3. Professor John Copeland Nagle - Notre Dame Law School
"Professor Smith's view is shared by numerous leading academics from across the political and ideological spectrum, including Dean Kathleen Sullivan of the Stanford Law School and Professor Lillian BeVier of the University of Virginia School of Law. His understanding of the First Amendment has been adopted by the courts in sustaining state campaign finance laws. See Toledo Area AFL-CIO v. Pizza, 154 F.3d 307, 319 (6th Cir. 1998)."
Enforcing the Law as Written by Congress and Interpreted by the Courts
It also speaks well of Professor Smith that constitutional scholars and election law experts that know him personally and are familiar with his work, including some who have served on the board of Common Cause, are confident that he will faithfully enforce the law as enacted by Congress and upheld by the courts. Professor Smith, let me read to you just a few examples of the confidence these experts have in your integrity and commitment to the rule of law:
4. Professor Daniel Lowenstein - UCLA Law School, Served Six Years on Common Cause National Governing Board.
"Anyone who compares his writings on campaign finance regulation with mine will find that our views diverge sharply. Despite these differences, I believe Smith is highly qualified to serve on the FEC. . . . Smith possesses integrity and vigorous intelligence that should make him an excellent commissioner. He will understand that his job is to enforce the law, even when he does not agree with it. . . . In my opinion, although my views on the subject are not the same as theirs, [the Senate Republican Leadership] deserves considerable credit for having picked a distinguished individual rather than a hack. . . . Although many people, including myself, can find much to disagree with in Bradley Smith's views, I doubt if anyone can credibly deny that he is an individual of high intelligence and energy and unquestioned integrity. When such an individual is nominated for the FEC, he or she should be enthusiastically and quickly confirmed by the Senate."
5. Professor Daniel Kobil - Capital Law School, former Governing Board Member of Common Cause, Ohio.
"Knowing Brad personally, I have no doubt that his critics are wrong in suggesting that as a FEC Commissioner, Brad would refuse to enforce federal campaign regulations because he disagrees with them. I have observed Brad's election law class on several occasions and he always took the task of educating his students about the meaning and scope of election laws very seriously. I have never heard him denigrating or advocating skirting state and federal laws, even though he may have personally disagreed with some of those laws. Indeed, several times in class he admonished students who seemed to be suggesting ignoring what they considered overly harsh election laws. Brad is an ethical attorney who cares deeply about the rule of law. I am confidant that he will fairly administer the laws he is charged with enforcing as a Commissioner."
6. Professor Randy Barnett - Boston University Law School.
"I . . . can tell you and your colleagues that [Professor Smith] is a person of the highest character and integrity. If confirmed, Brad will faithfully execute the election laws which the Commission is charged to enforce--including those with which he disagrees . . . . Brad's critics need not fear that he will ignore current law, but those who violate it may have reason to be apprehensive."
In closing this morning, let me sum up my thoughts on these two nominees. Professor Smith, I believe that your sin in the eyes of the reform industry is twofold: (1) you understand the constitutional limitations on the government's ability to regulate political speech, and (2) you have personally advocated reform that is different from the approach favored by The New York Times. I believe that neither your appreciation for the First Amendment nor your disagreement with The New York Times and Common Cause should disqualify you for service on the Federal Election Commission.
As the numerous letters that have been flooding in to me at the Committtee establish: Your personally-held views are well within the mainstream of constitutional jurisprudence and should not bar you from government service at the FEC. Personally, I think your views would be a breath of fresh air at a Commission whose actions have all too frequently been struck down as unconstitutional by the courts.
Two Camps -- Neither of Which is Out of Bounds
As Professor Smith has also noted, the world of campaign finance is generally divided into two camps of reasonable people who disagree with the Supreme Court's interpretation of the First Amendment in Buckley. One camp prefers more regulation. Another camp prefers less regulation. Neither camp is perfectly happy with the current state of the law.
One camp is made up of The New York Times, Common Cause and the Brennan Center, and scholars such as professors Ronald Dworkin, Daniel Lowenstein, and Burt Neuborne.
The other camp is occupied by citizen groups ranging from the ACLU to the National Right to Life, and scholars such as Dean Kathleen Sullivan, professors Joel Gora, Lillian Bevier and Larry Sabato.
It's probably fair to say that Danny McDonald is in one camp and Brad Smith is in the other. And, I definitely agree more with one camp than I do the other. But, I do not think agreement with either camp makes a person into a lawless radical or a wild-eyed fanatic. And, I certainly do not think that membership in either camp should disqualify a bright, intelligent, ethical election law expert from a six-year term of service on the bipartisan Federal Election Commission.
Enforcing the Law
Finally, and most importantly, the overwhelming letters of support for you, Brad, and your testimony here today convince me without a doubt that you understand that the role of a FEC Commissioner is to enforce the law as written, and not make the law in your own image.
Critics who have philosophical differences with you should heed the words of Professor Daniel T. Kobil, a former board member of Common Cause:
"I believe that much of the opposition is based not on what Brad has written or said about campaign finance regulations, but on crude caricatures of his ideas . . . . Although I do not agree with all of Brad's views on campaign finance regulations, I believe that his scholarly critique of these laws is cogent and largely within the mainstream of current constitutional thought. . . . I am confident that he will fairly administer the laws he is charged with enforcing . . . ."
And, let me add the sentiments of Professor Daniel Lowenstein of the UCLA Law School and also a former board member of Common Cause:
"Smith possesses integrity and vigorous intelligence that should make him an excellent commissioner. He will understand that his job is to enforce the law, even when he does not agree with it."
So I say to my colleagues here this morning that I personally believe that Professor Smith's intelligence, his work ethic, his fairness, and his detailed knowledge and understanding of election law will be a tremendous asset to the FEC and to the American taxpayers who have been forced to pay for numerous FEC enforcement actions that have been struck down in the courts as unconstitutional.
Professor Smith is a widely-respected and prolific author on federal election law, and, in my opinion, the most qualified nominee in the twenty-five year history of the Federal Election Commission. I am firmly convinced that he would faithfully and impartially uphold the law and the Constitution as a Commissioner at the FEC and I wholeheartedly support his nomination.
Comments for Commissioner McDonald
Now, Commissioner McDonald, I have a few specific thoughts on your nomination. First, let me state the obvious: you and I are in different campaign reform camps. If I follow the new litmus test that is being put forth by some in this confirmation debate, then I have no choice but to vigorously oppose your nomination.
Also, I have serious questions about your 18-year track record at the FEC. I think that your votes have displayed a disregard for the law, the courts and the Constitution. And, it has hurt the reputation of the Commission, chilled constitutionally protected political speech, and cost the taxpayers money.
All of that being said, Commissioner McDonald, I am still prepared to reject this new litmus test whereby we "Bork" nominations to a bipartisan panel based on their membership in a particular campaign finance camp. I am prepared to follow the tradition of respecting the other party's choice and to report your nomination out of the Committee -- assuming that your party grants similar latitude to the Republicans' choice.
Thank you both for being here today. I hope that we can move this process forward and report your nominations en bloc very shortly.
1. Katherine Rizzo, Associated Press, 2/17/200.