Archive for Monday, September 6, 1999


September 6, 1999


— President Clinton's reluctance to nominate Bradley Smith to serve on the Federal Election Commission illuminates more than Clinton's aversion to anyone who respects the Constitution. His reluctance also reflects the strength of the people trying to eviscerate the First Amendment with the knife of campaign finance reform.

The FEC administers the government's regulatory fidgets regarding political speech. (Eeeeeeeeeeeek! Did someone commit "express advocacy"?) If the Shays-Meehan bill, which the House passed last year and will debate again soon, becomes law, the FEC's speech police will enforce its complete censorship of any private organization's broadcasting of even factual material about a mentioned candidate within 60 days of an election.

There are six FEC commissioners, three from each party. Recent practice has been that when vacancies occur, presidents nominate and the Senate confirms people chosen by each party's Senate leadership. Smith, a professor of law at Capital University in Columbus, Ohio, is the Republicans' choice for a Republican vacancy, but President Clinton, heeding groups eager to expand government rationing of political speech, is balking.

Courts frequently and approvingly cite Smith's scholarship concerning why regulating campaigning is constitutionally problematic. He believes that the rationales for regulating political giving and spending -- preventing corruption, or the appearance thereof, and promoting political equality -- usually cannot survive the strict scrutiny that courts give to laws which seem to conflict with the constitutional proscription of laws abridging freedom of speech.

Which is why the anti-First Amendment forces, led by the Brennan Center for Justice at New York University, oppose Smith: He thinks the way the Supreme Court and other courts increasingly do. Indeed, Smith thinks like Justice William Brennan, the saint of liberalism for whom the Brennan Center is named.

In the 1976 Buckley vs. Valeo decision, holding key provisions of the 1974 amendments to the 1971 Federal Election Campaign Act (one amendment created the FEC) unconstitutional, the Supreme Court issued a per curiam opinion. The court issues per curiam opinions when for some reason it is not appropriate to list a single author. However, it is generally known that Brennan was the principal author of the opinion for the court in Buckley.

In Buckley the court struck down (among other things) expenditure limits for House and Senate candidates, for presidential candidates who do not accept public funds, for any candidate spending his or her own money, and for independent expenditures by private individuals or groups. The court held there is an indissoluble link between such spending and political speech. In all this the court agreed with another liberal saint, Justice William Douglas, who had said:

"It usually costs money to communicate an idea to a large audience. But no one would seriously contend that a limitation on the expenditure of money to print a newspaper would not deprive the publisher of freedom of the press. Nor can the fact that it costs money to make a speech -- whether it be hiring a hall or purchasing time on the air -- make the speech any the less an exercise of First Amendment rights."

The law creating the FEC should be displayed in the Smithsonian as a rare survivor among the laws passed in the spasm of post-Watergate moralizing. Richard E. Cohen of National Journal lists their fates:

The War Powers Resolution, with its baroque provisions for Congress to authorize and terminate military operations, is a dead letter, having been disregarded as unworkable and unconstitutional by every president since the resolution was passed over President Nixon's veto in 1973.

The Congressional Budget and Impoundment Control Act of 1974 established the timetable of today's budgeting process, which, Cohen says, Congress "routinely ignores."

The Independent Counsel Act, originally passed in 1978, has been allowed to expire, Congress having come to Kenneth Starr's conclusion that the law was "structurally unsound, constitutionally dubious."

As for the post-Watergate amendments to the FECA, Cohen correctly says that what remains of them has "little practical effect" on parties or candidates.

On this silver anniversary of the FEC, note that there are no federal elections. Presidents are chosen in 51 elections, in the states and the District of Columbia. In all but two states, all electoral votes go to the statewide plurality winner. Maine and Nebraska allocate the two electoral votes for their senators to the statewide plurality winner, but the other electoral votes go to the presidential candidate who wins each congressional district.

See? These are not "federal" elections. Nevertheless, we are stuck with the FEC. However, it can be improved by Smith, who understands how constitutionally dubious is government regulation of political speech.

-- George Will is a columnist for Washington Post Writers Group.

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