Brad Smith Departs To Cheers And Jeers

Originally published at National Journal
By K. Daniel Glover

In a January 2004 speech before the American Conference Institute, then-Federal Election Commission Chairman Bradley A. Smith delivered a scathing critique of McConnell v. FEC, a Supreme Court ruling from the previous month that had upheld campaign finance reforms as constitutional. “Now and then,” he said, “the Supreme Court issues a decision that cries out to the public, ‘We don’t know what we’re doing!’ McConnell is such a decision.”

That was just a warm-up jab. A passionate defender of unfettered political speech, Smith then used what has since become a favorite comparison of his: “If it was unclear before, it is now a fact that our Court gives less constitutional protection to the right to criticize the voting record of an incumbent congressman close to an election than it does to virtual child pornography, cross-burning, sexually explicit cable television programming, topless dancing, tobacco advertising, flag-burning, defamation, and the dissemination of illegally acquired information.”

Such pointed rhetoric, a hallmark of Smith’s five-plus years at the FEC, explains why self-styled campaign reformers are celebrating Smith’s departure from the commission last month. But it just as clearly reveals why free-speech advocates are lamenting the loss of a man they see as a principled, fearless, and eloquent champion of the First Amendment.

“It seems that what the ‘reform industry’ wants is a puppet, and if [a commissioner] isn’t their puppet, then they run to the media and whine about how awful that person is,” said Cleta Mitchell, a lawyer at Foley & Lardner who practices before the FEC. “So, Brad Smith isn’t and wasn’t their puppet. Good for him.”

Then-Senate Majority Leader Trent Lott, R-Miss., and Kentucky Republican Mitch McConnell, the senator whose challenge of the McCain-Feingold campaign finance law eventually went to the Supreme Court, suggested Smith for the slot on the FEC back in February 2000. Smith’s nomination quickly became controversial because of his criticisms of campaign finance law during his time as a law professor at Capital University in Columbus, Ohio, a post that he now has resumed.

Sen. John McCain, R-Ariz., compared putting Smith on the FEC with “confirming a conscientious objector to be secretary of Defense.” McCain’s allies in the advocacy community agreed. “The full Senate should reject Bradley Smith to serve on the FEC because of his fundamental disagreement with the law he would be sworn to enforce,” said then-Common Cause President Scott Harshbarger in a March 2000 statement.