FEC Comr. Who Raised Fears about Internet Resigning

Smith told us his decision to leave this year wasn’t related to the intra-agency dispute over how much to regulate Internet communications for political activities. The Commission’s interpretation of the Bipartisan Campaign Reform Act (BCRA), which excluded Internet activities from regulated “public communications,” was struck down last year in U.S. Dist. Court, D.C. (WID Sept. 21/04 p1). Though he strongly disagreed with the ruling and some colleagues’ eagerness to regulate online political activity, “I really don’t feel bitter about anything at the commission,” Smith said. He wouldn’t take the path of campaign reform activists who “blame it on the other side’s money” when they lose a battle, he said. Before joining the FEC, Smith taught law at Capital U. in Columbus, O., to which he plans to return: “It was never my plan to be a career Washingtonian.” Appointed to the FEC by President Clinton in 2000, Smith had a term that expired April 30; commissioners can stay until replaced.

The flood of comments on the notice of proposed rulemaking (NRPM) hasn’t swayed the Commission in any firm direction, Smith said. Commissioners are “still trying to find time to read through the comments,” which have leaned against regulation and are “uniformly thoughtful.” They were surprised not to receive “thousands of mass-mailed,” form-letter comments, he added.

Smith isn’t sure how the NPRM would have looked without his interview with CNet in March, when he first warned online activists and bloggers what could be in the NPRM. For months after the ruling the Commission received no comments from the public, Smith said. The media were misreporting the judge’s ruling, saying it affected only paid advertising online. Smith defended his public remarks “to the extent that I've focused some public attention” on the NPRM.

The early decade was an “unfortunate time for me to be on the Commission,” Smith said, since many FEC matters didn’t relate to his personal and legal interests, but “by any objective standard, the Commission is a much better run agency [now] than it was 5 years ago.” During his tenure the body has improved due process protections and assessed its highest penalties ever on a sitting senator, representative and congressional campaign committee, he said. His proudest accomplishment was “properly enforcing” BCRA rules about “527” groups, resisting efforts by the “lawless faction” -- including BCRA co- sponsor Sen. McCain (R-Ariz.) -- to push regulations beyond the bill’s scope, he said.

It’s squarely up to Congress to defend Internet communications from regulation, Smith said. “I hope there will be a strong momentum to keep a light touch” on the Internet from future commissioners, he said. But if “the folks in Congress don’t want some of these [communications] regulated, some of them need to speak up.”

RedState.org blogger Mike Krempasky called Smith’s exit disappointing but not surprising. “He’s never considered being a regulator as his vocation. He’s not a regulator at heart, nor could he be, with some of his views,” Krempasky said: “I'm sure he was looking forward to getting back to his preferred pursuit of teaching law.” Krempasky, a frequent commentator on the Commission’s ongoing Internet discussion, called Smith a “consistent friend of freedom” and “a very clear and powerful voice during the whole campaign finance debate.” During his tenure, Smith has often found himself providing the alternative or dissenting opinion in FEC deliberations. He’s always been eager to talk to the public about what the commission does and how it impacts voters.

Smith brought forth “a distinctive, highly informed point of view” and made major contributions to the commission during his tenure, said campaign finance attorney Bob Bauer. Even before his appointment to the FEC, Smith knew the field well, had written on FEC-related topics and had a keen perspective on the constitutionality of laws, said Bauer, who chairs Perkins Coie’s Political Law Group.

Smith’s departure will close “a sorry saga at the Federal Election Commission,” Public Citizen campaign finance lobbyist Craig Holman told us. He said Smith’s presence on the FEC was a “blatant joke” by staunch opponents of reform. Smith was the lightning rod who showed a regulatory agency could be transformed into an anti-regulatory agency, Holman said. Appointments to the FEC since Smith joined also have been hostile toward the Federal Election Campaign Act.

Center for Response Politics’ Exec. Dir. Larry Noble told us that despite disagreeing with Smith’s general attitude toward campaign finance law as well as with his position on other issues, he recognizes the intellectual focus, energy and commitment Smith brought to the job.

Without Smith’s perseverance, the NRPM would have been closer to “the really awful and draconian staff draft of the rules,” Krempasky said. Smith’s CNet interview energized the Web community for a new battle. “None of us knew anything about this until he gave that interview,” he recalled: “Then bloggers and online professionals from left and right got together and made an aggressive push on the FEC to really consider their views.”

Congress’s search for Smith’s replacement will be fascinating, Krempasky predicted. “Clearly the reformers have a vested interest in putting someone more friendly to their viewpoint in the seat,” he said, noting that lawmakers were able to replace Democrat Karl Sandstrom with sitting Comr. Ellen Weintraub, who repeatedly has voiced views different from her predecessor’s. Krempasky said that replacement alone made the difference between appealing or accepting U.S. Dist. Judge Colleen Kollar- Kotelly’s decision last fall to overturn campaign finance rules that exempted the Internet order.

Sens. Feingold (D-Wis.) and McCain released a joint statement late Wed., noting that Smith’s departure underscores that the terms of 4 of 6 commissioners have expired. “Particularly after the FEC’s dismal failure to deal with the 527s in the last election and the recent ruling by a Federal District Court that was sharply critical of the FEC’s BCRA regulations, the President must appoint Commissioners who will put the FEC on the right track,” they said: “We believe that ultimately Congress should create a new enforcement agency to replace the FEC. But in the meantime, it is crucial that Commissioners be chosen who will be dedicated to following the law, not their own policy preferences.”