FEC Seal

April 16, 2002

Hon. John S. McCain
United States Senate
Washington, D.C. 20510

Hon. Russell D. Feingold
United States Senate
Washington, D.C. 20510

Hon. Christopher Shays
United States House of Representatives
Washington, D.C. 20510

Hon. Marty Meehan
United States House of Representatives
Washington, D.C. 20510

Dear Senator McCain, Senator Feingold, Representative Shays, and Representative Meehan:

I have received your letter of April 10 addressed to all members of the Commission, expressing your desire to testify at public hearings during the rulemaking process for the Bipartisan Campaign Reform Act of 2002 ("BCRA"). Let me assure you that I want your input, and indeed, some of us had already discussed specifically asking you to testify. I am pleased, therefore, that you have decided to play a constructive role in the rulemaking process, and hope that you will personally testify at these hearings. I also hope that you will devote attention to making certain that the Commission has the resources needed to carry out its greatly increased responsibilities under BCRA.

In another letter also dated April 10, and released to the press prior to any attempt at delivery to me, you request that I recuse myself from rulemakings under BCRA. You cite no legal rule and no legal or historic precedent for such recusal. However, you basically make two arguments: first, that I engaged in "inappropriate intervention" in the "climactic debate" over the legislation, and second, that because I have made public statements critical of the legislation, it is impossible for me to "credibly fulfill [my] duties as [a] Federal Election Commissioner[] to fairly write implementing regulations for this new law."

First, I was pleased that, unlike earlier public statements by Senator McCain, your letter and press release accurately stated the nature of my activity. In prior public comments, Senator McCain has erroneously claimed that I was "lobbying against a piece of legislation in the Congress," and that I had actually gone to the Hill to lobby during the debate.[1] As you know, the entire substance of my "intervention" in the House debate was to respond to a request from the office of the Majority Whip, as to the interpretation that I, as a member of the FEC charged with interpreting the statute, would give to language in the bill.

However, I must reject your characterization of my letter as "support[ing] a position that opponents of the bill were taking…". Quite the contrary, the letter I sent in response to the request from the Whip's office addressed a technical question about the language of the bill, which was, in fact, later changed with agreement of the sponsors in order to be sure that the bill would operate as intended. It did not address the merits of the bill.[2]

Second, it is my general policy to respond as fairly and accurately as I can to requests from members of Congress for information or for my opinion. For example, in March of 2001, I responded to a request from the office of Senator Richard Lugar for my thoughts on the Election Reform Act of 2001, then before the Senate. I am sure that you agree that it is appropriate for members of an independent agency to avail members of Congress of their expertise, and that such expertise should not be limited only to proponents of legislation.

I also must disagree with your suggestion that because I "knew that the letter would be used [by opponents of the bill in the floor debate]," I should not have acted. To suggest that an official should consider how a Member of Congress might use his response before providing an honest opinion would embroil officials in precisely the type of partisan calculation over which you express concern. Officials would either have to assess the probable use of their advice and expertise for or against possible legislative outcomes, or adopt a blanket policy of not responding to congressional requests for information. The former policy would require me to do exactly what we agree I should not do - to provide advice to congress with an eye on how it will be used in the debate. The latter policy would deprive Congress of valuable information - for example, in this case, even though the information was requested by an opponent of the bill, our timely comments provided an opportunity for supporters to amend the legislation to better accomplish the intended objective of immediately limiting soft money. It is unfortunate that the request for my interpretation from the Whip's office came during the middle of floor debate. But you well know the reason why: the language in question had only been made public by the bill's House sponsors earlier that morning. Had the language been made available earlier, this situation might not have arisen.

Thus, I believe that my behavior was not "ill advised." I will continue to respond to requests for information or expertise from Members of Congress, and I hope that you will feel free to take advantage of that expertise. You can be assured that my office will do all it can to assist you.

Your second argument is that my public comments on the legislation should lead me to disqualify myself from the rulemaking, even though you admit that "independent regulatory Commissioners are free to express themselves on issues of public interest." Nevertheless, you claim that in this case my public comments have "impaired [my] ability to credibly fulfill [my] duties as [a] Federal Election Commissioner[].

First, your implication that my public comments should have taken place through "formal testimony before Congressional committees" is disingenuous, to say the least. As you well know, no hearings were held on the bill in the House or Senate.

More importantly, I must disagree with you as to the question of my credibility. I am confident that each of you, if put in my position, would put aside your personal views in order to fulfill your professional, ethical, and legal obligations, and so I see no reason to belabor the obvious point that I intend to do the same. Voters understand that public officials are often called on to enforce laws with which they may disagree, and indeed that this practice is at the core of the rule of law. The FEC was structured to be a bipartisan agency. The exclusion of Commissioners from rulemaking simply because they were critical of a bill, which was ultimately opposed by 189 Members of the House and 40 Senators, is unlikely to inspire public confidence that the regulations will be fair and balanced. Indeed, it is ironic that you seem to believe that a public campaign questioning the integrity of government officials will somehow lead to "public confidence" in the law.

Although it is currently popular in some quarters to claim that the FEC has been timid in its enforcement efforts, those who are familiar with the history of the FEC and FECA in the courts know that this is not true. Rather, federal courts have repeatedly struck down overly aggressive FEC regulations and enforcement actions as exceeding the limits of the statute, the Constitution, or both. Thus a fair, balanced, bipartisan approach to drafting regulations that will withstand the inevitable legal challenges is vital to the ultimate effectiveness of the BCRA.[3]

The concerns voiced in your April 10 letter are, in fact, quite similar to comments made by Senators McCain and Feingold, and rejected overwhelmingly, at the time of my Senate confirmation in May of 2000. They also echo numerous comments made before and since my nomination by spokespersons for various advocacy groups that lobbied in favor of the BCRA. Though I do not believe this is your intent, many Americans see these apparent attacks on the integrity and legitimacy of those who disagree with "campaign finance reform" as indicative of a deep-seated desire to silence opposing voices.[4] As such, these attacks on the integrity of Commissioners may actually detract from the public perception of the legitimacy of the Bipartisan Campaign Reform Act, and do no justice to the cause for which all of you have worked so hard. They certainly do nothing to help the Commission focus on the on the difficult task of drafting regulations within the tight time frames called for by the Act.

Finally, I disagree with your assertion that I have attacked "the goals and purposes of the new law." In my writings and speeches, I have made clear that the goals and purposes of campaign regulation ought to include fostering informed political discussion; promoting competitive elections; insuring that all voices that can be heard are heard; preventing political corruption; promoting political equality; and protecting the First Amendment rights of American citizens. Presumably these goals and purposes are roughly the same as yours when introducing this legislation. Our disagreements over tactics and the effects of regulation ought not blind you to the fact that our goals and purposes are the same. We can all wear white hats. We are all "reformers."

I hope that in the future you will contact me directly if you have concerns about my conduct or the FEC and its policies generally. Within the bounds allowed by ethical restrictions, the Commission's rules on ex parte communications, and other applicable laws, rules and regulations, my staff and I are always available to assist you.


Bradley A. Smith

[1] See e.g. National Public Radio, All Things Considered, Mar. 28, 2002; Newsday, Mar. 21, 2002; USA Today, Mar. 21, 2002.

[2] The substance of the issue was a provision that would, by its plain language, have allowed hard money debts incurred before the November 2002 elections to be repaid after the elections with soft money. The House had been presented with the opinions of lawyers (some of whom, according to some news accounts, worked for groups lobbying for legislation and may have helped to draft the provision at issue) claiming that the law's pre-existing broad restriction on using soft money to pay hard money debts would override the questionable language in the bill. Generally in statutory construction a more recent provision overrides a directly contrary prior provision, and a particular provision overrides a general provision. Thus, it was clear to me that the provision would have allowed soft money to repay hard money debts for a brief period in late 2002. I note that despite your complaints, you do not argue that my interpretation was not grounded in law or was in some way biased, and that you worked to amend the language to conform to my opinion.

[3] See e.g. Colorado Republican Federal Campaign Comm. v. FEC, 518 U.S. 604 (1996) (striking down on constitutional grounds an FEC rule presuming that party expenditures are coordinated with candidates); Virginia Society for Human Life, Inc. v. FEC, 263 F.3d 379 (4th Cir. 2001), Maine Right to Life Committee v. FEC, 98 F.3d 1 (1st Cir. 1996), cert denied 522 U.S. 810 (1997), and Right to Life of Dutchess County, Inc. v. FEC, 6 F. Supp. 2d (S.D.N.Y. 1998)(striking on constitutional grounds an FEC regulation defining "express advocacy"); FEC v. National Rifle Association, 254 F.3d 173 (D.C. Cir. 2001), Minnesota Concerned Citizens for Life v. FEC, 113 F.3d 129 (8th Cir. 1997), and FEC v. Survival Education Fund, 65 F.3d 285 (2d Cir. 1995) (rejecting on constitutional grounds FEC regulation applying ban on corporate contributions to certain types of non-profit organizations); Clifton v. FEC, 114 F.3d 1309 (1st Cir. 1997), cert denied 522 U.S. 1108 (1998)(striking down on constitutional grounds an FEC regulation on voter scorecards); Republican National Committee v. FEC, 76 F.3d 400 (D.C. Cir. 1996), cert.denied 519 U.S. 1055 (1997)(striking down on statutory grounds an FEC regulation requiring solicitations to include certain disclaimers); United States Chamber of Commerce v. FEC, 69 F.3d 600 (D.C. Cir. 1995)(striking down FEC regulation on definition of membership); FEC v. Christian Coalition, 52 F. Supp. 2d 45 (D.D.C. 1999)(striking on constitutional grounds an FEC rule regarding coordination).

[4] See e.g. Ramesh Ponnuru, Silencing Dissent, National Review Online Mar. 11, 2002.