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| Statement of Commissioner Bradley A. Smith June 4, 2002 Public Hearing On Prohibited and Excessive Contributions: Non-Federal Funds or Soft Money |
This is one of the most important rulemakings ever to come before the Commission. BCRA’s requirement that these first, highly complicated regulations be completed within 90 days has placed a tremendous burden on our staff, and more importantly has forced the Commission to require public comments to be submitted in a very short time period. I am fairly certain that this necessarily brief comment period has had the effect of preventing many members of the public from commenting on the regulations, and has forced others to prepare their comments in a greater hurry than is desirable for such a complex, far-reaching piece of legislation. Nevertheless, I am pleased that we have received many thoughtful and detailed comments from the public, and I am pleased that many of those commenters have rearranged their schedules to appear before us today and tomorrow.
Last week four members of congress - Senators McCain and Feingold, and Representatives Shays and Meehan - issued a press release touting their comments on these draft regulations, and so I think it appropriate to comment briefly on that release. The lawmakers write that they “believe the Commission should give great weight to our views in order to implement the law properly.” Now, I’ve been through a few of these hearings as a Commissioner, and through several congressional hearings as a witness, and I have yet to encounter a witness – myself included - who did not think that his or her views should be “given great weight.” I assure the lawmakers that I have read their comments and that I will give them great weight, as I do all thoughtful comments we receive.
However, I do not agree with Senators McCain and Feingold, and Representatives Shays and Meehan, when they write that, “Only if the Commission adopts the recommendations we make in these comments will the final regulations reflect the will of the people of this country.” Indeed, if we were to take this assertion at face value, there would be little reason either to have this hearing, or even to solicit or accept other comments other than theirs, for any alternative views would have to be ignored. But I disagree with the apparent assumption that other commenters cannot shed light on “the will of the people,” or, more importantly, the proper interpretation of the statute actually passed.
I reject the belief that the views of the NAACP are to be discounted – indeed ignored – simply because they are not in accord with those of the four lawmakers. I reject the implication that the views of the Alliance for Justice and The Latino Coalition; of the American Federation of State, County, and Municipal Employees and the AFL-CIO, and of state and national political parties representing millions of members are to be ignored every time that they raise concerns about these proposed rules that are very different from those raised by these four men. Indeed, I am impressed by the broad consensus among these diverse commenters, and I assure all the commenters, whether they are here in person today or not, that I will consider your comments carefully, and will not ignore them merely because they may offer a different point of view or a different interpretation than that offered by four members of congress.
The lawmakers also state that their views “best represent Congressional intent on the key provisions at issue in these regulations.” But 58 other senators, and over 230 House members, voted for the bill. While the views and floor statements of the four lead sponsors do merit some particular consideration, the vast majority of issues addressed in these draft regulations were never addressed during floor debate. This includes even those that they have identified as “key” issues in their testimony. For example, there was no floor debate on the definition of “agent.” There isn’t anything in the Congressional Record suggesting that the legislation was intended to change the definition of office building from that used in the Commission’s past advisory opinions. There was no debate over what it means for a national committee to “indirectly establish, finance, maintain, or control” an “entity.” Thus I cannot conclude that these post-hoc comments of four men are definitive of congressional intent.
Nor is "congressional intent" such an easy animal to corral. For example, we are told repeatedly that the intent of the bill was to limit so-called soft money to the maximum extent possible. Yet we are told by other commenters that adopting some of the formulations favored by the sponsors will hurt voter registration efforts in minority communities, while other lawful interpretations would not. I do not believe that a majority of Congress intended to cut back voter registration in minority communities, and I do not believe that this would be a good policy result. So congressional intent is not always so clear.
With that in mind, it should also be noted that in signing the legislation, President Bush raised concerns about the constitutionality of portions of the legislation. While he did not specify which portions he was referring to, it is clearly incumbent on us to take the views of the President into consideration in drafting these regulations. Thus it is imperative that we attempt to draft these regulations in such a way as to assure their constitutionality. BCRA will not accomplish any of the President’s or the congress’s objectives if the courts refuse to enforce it on constitutional grounds. And, of course, our own oaths of office require no less.
Finally, I note that the lawmakers also suggest that if we do not follow some of their suggestions, it will “signal a lack of will on the part of the Commission to interpret and enforce the Act.” However, on many of these issues other commenters, from across the political spectrum, are unanimous in suggesting that the regulations are too broad and strict, basing their arguments on the Constitution, on legislative intent, on long-standing rules of statutory construction, and on reasons of sound policy. And I want to point out that in some areas, the lawmakers themselves indicate that the draft regulations are overly restrictive as, for example, with proposed Section 300.52, pertaining to solicitations by officeholders on behalf of non-profits.
I hope that the fact that the sponsors found our draft regulations at times overly restrictive will put to rest any notion that the FEC “lacks the will” to enforce the law. These hearings are not, as some have claimed, about whether or not we will have “strict” enforcement or “loose” enforcement. They are about whether or not we will have proper, constitutional, enforcement based on the law Congress has passed and the President has signed. To that end I will do my best, and I thank all of the commenters for their assistance in that crucial task.