Why are they Smearing Bradley Smith?
Yesterday I posted a long entry detailing the involvement of the Campaign Legal Center in the ongoing attempt to reign in blogs using McCain-Feingold. At the center of the controversy stemming from FEC Commissioner Bradley Smith's interview with CNET is a press release, dated March 4 but sent out late in the evening of the 3rd, by Mark Glaze. Glaze's boss, Trevor Potter, runs the Campaign Legal Center. Although his official biography on the Center's site omits mention of it, he was also John McCain's general counsel during the 2000 campaign season and is former Commissioner of the FEC.
Given the connections between John McCain and Trevor Potter that I uncovered yesterday, it's important to understand the relationship between Senator McCain, in particular, and parts of the left in general, and Bradley Smith, who was appointed to the FEC by Bill Clinton. That is, what precedent is there for Smith’s colleagues at the FEC to team up with John McCain’s cronies to attack him? First, as I outline in some detail below, McCain’s relationship with Smith has long been contentious, and as the principal champion of campaign finance reform, which draws most of its political support from the left, McCain’s allies have been mostly liberal, and his opponents conservative. In that sense, Potter’s press release is a continuation of an old fight.
What’s new, of course, is the strength of the blogosphere as it combats these efforts that could effect bloggers’ ability to write what they please about politicians and political topics. In 2002, when the law was passed, blogging was in its infancy. Opponents had little recourse, in comparison with what’s available today, to voice their concerns or to spread the word about how political speech might be affected by the law’s passage.
Today, of course, all of that has changed, and to a degree few expected. In the post-Rathergate, post-Swift Vets, post-Easongate era, the threat posed by the blogosphere to the very interests that supported McCain-Feingold from the beginning have increased exponentially. This explains, in large part, why the champion of free speech, Bradley Smith, is being attacked by his colleagues.
But, as so many bloggers observed yesterday, it will take much more than old-fashioned press releases to squelch the outcry against these horrendous regulations. What McCain and his cronies in DC fail to comprehend is that any talk about interfering with the rights of bloggers to write what they please, about what they please, is dead from the start. We don’t want any regulation at all – period. How difficult to comprehend is that? We intend to cling to the First Amendment’s unambiguous protection of free speech. And, for those who’ve forgotten the wording, here it is:
Here’s a rundown of Bradley Smith’s relationship with McCain and the left.
Robert Novak outlined the troubles McCain has always had with Smith in this March 23, 2000 column, wherein he recounts McCain's extraordinary efforts to block Smith's nomination to the FEC -- the first such effort in the then-25-year history of the FEC:
Bradley A. Smith, a professor at Capital University law school in Columbus, Ohio, and a leading critic of campaign finance reform, after two years of tortuous maneuver was ready for Senate approval. But one senator put a hold on the Smith nomination. It was John McCain, playing what he ironically calls his Senate role of "Miss Congeniality."
Also, the Brookings Institution's Governance Studies' Recent Developments in Campaign Finance Regulation reported on April 10, 2002, that Sens. McCain and Feingold, joined by Reps. Shays and Meehan, sent a letter to Bradley Smith and David Mason requesting that they recuse themselves from what the update calls "participation in the rulemakings required by the Act." The link to the letter doesn't work, but the update quotes this:
On the same day, the Brookings update lists the plaintiffs who joined Sen. Mitch McConnell's suit against the Bipartisan Campaign Reform Act (BCRA), and, in case you've forgotten, most of them (excepting the ACLU) are on the conservative side of the fence. This acts as a further reminder of the contentiousness of this Act, and of the predilection of Sen. McCain and his allies to see the right -- including much of the blogosphere -- as his natural enemies in his successful attempts to restrict political speech. Here's the list:
About a year later, on March 10, 2004, the Brookings update notes that Sen. McCain publicly scolded both Bradley Smith and Ellen Wientraub:
In an interview with USA Today published August 25, 2004, Sen. McCain, sounding a bit unhinged, had this to say about Bradley Smith (and Ellen Weintraub):
As for Trevor Potter, he represented Shays and Meehan in their suit against the FEC. And he has a long history of supporting FEC regulation of Internet speech, as detailed in a September, 2000, Brookings update. He notes that the consensus at that time held that the Internet should be exempt from broad regulation unless large sums of money are spent. Then he wrote:
There are also signs that Congress has begun to take an interest in the regulation of political speech on the Internet. House Whip Tom DeLay introduced an amendment to the Shays-Meehan bill which would have exempted all political communications on the Internet from FEC regulation. This amendment was deemed a "poison pill" by Shays-Meehan sponsors because under the House rules of the debate it could have supplanted the entirety of the Shays-Meehan bill. Additionally, Common Cause attacked the DeLay amendment, noting that the exemption would apply even to the payment by a commercial corporation for millions of dollars of Internet advertising on behalf of a federal candidate. The amendment was defeated, but a number of other Members in both Houses have indicated their support for more limited exemptions for Internet-based political activity.
Additional understanding of Bradley Smith's record of integrity can be found here, in a WSJ editorial from February 18, 2004. It details how, first Democrats, and then Republicans, pummeled Mr. Smith because he has taken a consistent line in favor of free speech. That upset the left when he opposed McCain-Feingold, and it upset the right when he argued that 527s should be allowed to act freely. The Journal wrote:
And its conclusion was consistent with what many of us believe:
More information of what the left thinks of Smith can be found at the Brennan Center, which launched a broadside against him when he was nominated to the FEC by President Clinton in February, 2000. Here's what it said when he was nominated:
Common Cause denounced him in this press release.
From my perspective, these amount to many reasons to like Bradley Smith, to believe he's a man of integrity and courage, and to take heed to what he says. There is a segment of the Establishment that is annoyed by the need to hear criticism of their ideas and policy positions. In the past, they could count on the MSM to beat the drum for their causes and, in most cases, simply ignore their critics. That was certainly true in history of campaign finance "reform," which was and remains a mandatory article of faith to John McCain and virtually the entire political left.
Which is to say, Bradley Smith strikes me as a man who has all the right enemies. I hope bloggers will continue to take seriously his warnings, and to investigate the implications of what his critics contend. In particular, lawyers who blog will, I hope, expand their research into the potential outcome of Shays-Meehan vs. FEC, and report their findings -- in rigorously researched form -- to the rest of us. I will delve further into that important document myself.
Update: The Big Trunk at Power Line has two posts. This one contains insight on the case referenced above, Shays-Meehan vs. FEC; this one reminds us of Bradley Smith's book, published by Princeton Press. You'll find it listed in the Amazon ads to the left. Steve Bainbridge lists some other blogs who're following this story.
| Mar. 5, 2005 | 4:42 PM