WASHINGTON — In 1999, President Bill Clinton, at the behest of Republican leaders in the Senate, nominated Bradley A. Smith to the Federal Election Commission. The nomination did not receive universal praise.
The New York Times called Smith’s nomination “an insult.” The Washington Post said his writings were “quite radical,” which was not a compliment. The Atlanta Journal Constitution wrote that his nomination was “tantamount to assigning a Flat Earth Society poobah a seat on the next space shuttle adventure.”
The politicians echoed the editorial pages. Senator John McCain began his long war with Smith by saying, “sending Brad Smith to the FEC is akin to confirming a conscientious objector to be secretary of defense.” Vice President Al Gore argued that Smith was “unfit for public office” despite the fact that Clinton had nominated Smith.
Senators have the right to put a hold on nominees to the FEC, and McCain did so in Smith’s case for several months. Eventually Republican leaders traded five judgeships for Smith’s ascension to the FEC.p>Smith was not a typical nominee to the commission. He had not practiced election law in Washington while forming strong ties to party leaders. Instead he had pursued an academic career: a law degree from Harvard, a position at Capital University School of Law, several articles in leading law reviews, and (full disclosure) policy analyses for the Cato Institute. While his nomination lingered in the Senate, Smith finished his book Unfree Speech img src= “http://www.assoc-amazon.com/e/ir?t=theamericansp-20&l=ur2&o=1” width=”1” height=”1” border=”0” alt=”” class=”c1”>. /p>
His scholarship argued that campaign finance regulation ran counter to the clear meaning of the First Amendment. Powers-that-be in campaign finance regulation were not persuaded. As a prominent election lawyer put it, “Had [Smith] been a well-known academic reformer — had he come to the FEC having written about the need for expanded regulation and militant regulation — his press would have been good and his learning would have been cited as much to his credit. As his views ran the other way, he was regularly viewed as an ‘ideologue’ and too biased to function impartially and appropriately as a Commissioner.”
Smith took on a powerful but small lobby. Since Watergate, the campaign finance issue has been the exclusive property of the “reform community” composed of groups like Common Cause (which claims 200,000 members) and organizations like Democracy 21 and the Center for Responsive Politics, which are largely funded by foundations rather than members. The reformers won big in 1974. Common Cause founder John W. Gardner managed to redefine Watergate as a campaign finance scandal. Two months after Nixon resigned, Congress passed comprehensive controls on money in elections, and the courts upheld most of these restrictions.
No new legislation followed, but the reform community remained influential inside the Beltway. Just as Smith began publishing his analysis of campaign finance laws, reformers began a new push for more restrictions. Several wealthy foundations led by the Pew Memorial Trusts decided to devote enormous sums to passing new restrictions on campaign finance. The movement also found its voice in Senator McCain, a Republican trying to atone for his part in the Keating Five Scandal of the early 1990s. This coalition succeeded in passing McCain-Feingold in 2002.
SMITH’S EXPERIENCE MIRRORS the struggles of conservatism in general. He went up against an entrenched establishment with money and a sympathetic media. His reflections on his time at the FEC may tell us something about the future of the conservative cause.
Years in Washington have sharpened Smith’s awareness of a few key facts. With particular opprobrium reserved for the New York Times, he charges that reporters come to the issue of campaign finance with overriding biases, and those biases are shared by their editors. Many reporters are willing to fire off preconceived pro-campaign finance reform stories, he says, even if they know the story is wrong, or absurdly oversimplified.
The ink-stained wretches are naive in Smith’s opinion. They refuse to consider the possibility that campaign finance laws might suppress political activity in favor of the interests of incumbent members of Congress. Though deeply cynical about politics, journalists are somehow never cynical about the motivations behind the latest proposals to restrict money in politics.
The people who work in Washington, he says, have little idea of the consequences of the rules they make. In particular, campaign finance regulators do not worry much if complex rules make it harder for average Americans to engage in politics.
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