Commissioner Brad Smith's oped and the role of the FEC as interpreter of the Constitution

FEC Commissioner Brad Smith writes Stifling in Name of Reform in today's Washington Times. The oped concerns a decision the FEC had to make about how to treat a proposed advertisement in which a federal senator praises a candidate for mayor. From the oped:

Sounds innocent enough. However, under McCain-Feingold, no state or local political party, and no candidate for state or local office, can make any "public communication" that "promotes or supports" or "attacks or opposes" any federal candidate or officeholder unless paid for with federally regulated money.
Although Mr. Weinzapfel was seeking local office in Indiana, and the campaign was paying for the ad in accordance with Indiana and Evansville laws, his campaign could not run the ad if it "promotes or supports" or "attacks or opposes" Mr. Bayh.

Commissioner Smith concludes later in the oped:

It would have been very easy to conclude the ad "promotes" or "supports" Mr. Bayh — indeed, I would be hard-pressed to say it did not.
Nonetheless, I voted to approve the ad because of my belief that a straightforward reading of the statute would be blatantly unconstitutional.

Back when Brad Smith was being considered for a nomination to the FEC, I opposed the nomination. I consider Smith to be a person of great integrity and intellectual honesty, and I always believed (and continue to believe) that Smith, as FEC commissioner, would act to uphold the Constitution. The problem is that there are enough gray areas---room for interpretation of the Constitution not dictated by Supreme Court precedent---that a person's ideology necessarily plays a role in how that person will fill in the gray areas. Someone like Smith, who has written a book and numerous articles attacking the Supreme Court's interpretation of the Constitution in the campaign finance area, predictably resolves issues against regulation. The point should be kept in mind as other FEC nominees are considered for confirmation.

Posted by Rick Hasen at November 10, 2003 06:18 AM