We Need Bradley Smith's Skepticism of FEC Regulation

by Randolph J. May
Legal Times, May 1, 2000

No wonder President Bill Clinton's nomination of Bradley Smith to fill one of the six seats at the Federal Election Commission stirs such passions. The articulate, mild-mannered law professor has dared challenge the conventional wisdom that all we need to cleanse the messiness from our politics is one more good dose of campaign finance reform.

Shortly after nominating Smith to the agency responsible for enforcing the federal election laws, President Clinton bashed his own nominee, charging "he hates campaign finance reform." And Vice President Al Gore quickly came out against Smith's nomination and urged senators to vote against him. This from a man who knows a thing or two about the fine nuances and controlling legal authorities of the campaign laws.

What's going on when the president nominates someone that he would really rather not have sitting as a member of an important agency, and his own vice president loudly lobbies against confirmation?

Strange Agency Bird

A little background is useful, starting with the understanding that the FEC is a rather strange bird indeed. As originally constituted, its members were selected by Congress. But in the landmark 1976 Buckley v. Valeo decision, the Supreme Court held that this selection method violated the separation-of-powers doctrine inherent in the appointments clause insofar as the agency had been delegated rule-making, adjudicatory, and enforcement functions. Congress rewrote the law so that the FEC's six members are appointed by the president and confirmed by the Senate.

Although Congress fixed the method of selecting commissioners, it created an independent regulatory agency unlike any other-with membership divided equally between the two parties. So, unlike appointments to the Federal Trade Commission, the Securities and Exchange Commission, the Consumer Product Safety Commission, and the Federal Communications Commission, the president can never appoint a majority of members from his own party.

And in order to retain as much leverage as possible over the selection of commissioners, Congress arranged the terms of office so that the president must always nominate a Democrat and a Republican at the same time. As Trevor Potter, a well-respected former FEC commissioner points out, this pairing of nominees provides the congressional wing of the party not holding the White House with even more leverage than usual to press for appointment of its preferred nominees.

So much leverage that even many commentators simply speak of the Republicans and Democrats in Congress each nominating three commissioners. Thus, even though the president has the responsibility (yes, post-Buckley, even the constitutional duty) to nominate the FEC members, in reality, one might still sympathize with his "the Republicans made me do it" lament. It was widely reported that the president had to agree to nominate Smith in exchange for Senate approval of some of his judicial nominees. At present, Smith's confirmation vote is being held up by wrangling over which judicial nominations will be brought to the Senate floor, along with opposition generated by those who disagree with Smith's views.

Reforming the Reforms

Apart from how he came to be nominated, Bradley Smith, if confirmed, likely will affect the future direction of the public debate about the efficacy of the post-Watergate campaign reforms and the desirability of "reforming" those reforms still further.

It's not clear whether Smith's one vote will change the outcome of many agency actions under the Federal Election Campaign Act, but his views might get a better airing from a seat on the FEC than they do from his perch at Capital University Law School. Perhaps that is what the president, vice president, and other self-proclaimed campaign reform advocates fear most.

In Buckley, the Court recognized that "virtually every means of communicating ideas in today's mass society requires the expenditure of money." Therefore, it ruled that the FECA provisions that restricted the right of individuals, groups, and political committees to make independent expenditures not coordinated with a candidate's campaign violated the First Amendment. At the same time, the Court upheld limitations on campaign contributions, noting the compelling governmental interest of preventing corruption, or the appearance of corruption.

In his oft-cited 1996 essay in the Yale Law Journal, "Faulty Assumptions and Undemocratic Consequences of Campaign Finance Reform," Professor Smith offered strong support for his argument that "[e]fforts to drive money from the playing field of politics will entrench incumbents, make the system less responsive to popular opinion, concentrate power in the hands of select elites, and depress grassroots political activity." Smith does more than identify and analyze these "undemocratic consequences" of campaign finance reform. He argues, correctly in my view, that strict adherence to the First Amendment, rather than a balancing away free speech rights, is the best way to ensure continuation of the workable democracy the Founders bequeathed us.

As Smith puts it:

By keeping government out of the electoral arena, the First Amendment allows for a full interplay of political ideas and prohibits the type of incumbent self-dealing that has so vexed the reform movement. It allows challengers to raise the funds necessary for a successful campaign and keeps channels of political change open. . . . And because the First Amendment, properly applied to protect contributions and spending, makes no distinctions between the power bases of different political actors, it helps to keep any particular faction or interest from permanently gaining the upper hand. In each respect, it promotes true political equality.

Enforce and Interpret

At his March 8 confirmation hearing, Smith pledged that he would "act to enforce the law as it is, even when I disagree with the law." But FECA, like most regulatory statutes, contains ambiguous terms subject to differing interpretations by reasonable people. And the commission, like most agencies, is presented with a variable and evolving set of fact patterns to square with the law's ambiguous mandates. So, over and over again, the FEC must decide whether to interpret FECA more expansively or less expansively. Or put another way, whether to interpret the statute in a more speech-restrictive or less speech-restrictive way.

For example, in Colorado Republican Federal Campaign Committee v. FEC (1996), the Supreme Court rejected the FEC's view that a political party could never make an "independent" expenditure not subject to FECA's spending limitations. And it rejected the FEC's determination that the expenditure at issue by the Colorado Republican Party was, in fact, not "independent," but rather an expenditure "coordinated" with the party candidate's campaign.

Despite the strong pro-First Amendment tilt in the Court's Buckley and Colorado Republican decisions, the FEC likely will continue to test the limits of its authority in cases in which it is asked to distinguish between "express advocacy" that is regulated and "issue advocacy" that is not, or between unregulated "independent" speech and regulated "coordinated" speech. With all the hype today about the undue influence of the "special interests" (read: those other guys advocating positions different than our own), some people forget that each decision that expands the campaign statute's coverage involves a diminishment of our free speech rights. At a time when more and more political speech is moving to the Internet, a domain particularly well-suited to the freewheeling exchange of ideas, we can expect that the FEC's application of its precedents to this new medium will highlight this trade-off.

The FEC's choice of words in a December 1999 rule-making notice ("General Public Political Communications Coordinated With Candidates") illustrates how far we may have come in accepting a devaluation of our First Amendment rights. With hair-splitting hypotheticals proposing to clarify the term "coordinated general public political communication," the agency emphasizes that a more definitive delineation of speech subject to FECA's restrictions should provide comfort to the "regulated community." Guess what? We-the general public-are the regulated community, if we choose to spend money to communicate views about candidates in ways that the FEC doesn't like.

Predicting how agency officials will vote, once confirmed, is only a little less tricky than predicting the votes of future Supreme Court justices. But we may assume that, in deciding close cases not governed by controlling legal authority, Professor Smith will be true to his convictions and come down on the side of less regulation and more free speech. For the sake of all of us who, potentially, are in the regulated community, that's not a position that should be unrepresented at the FEC.

Randolph J. May is a senior fellow and director of communications policy studies at the Progress & Freedom Foundation in Washington, D.C. The views expressed are his own and do not necessarily reflect the views of the foundation. He may be reached at rmay@pff.org. His column, “Fourth Branch,” appears regularly in Legal Times.

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