The foxes guarding democracy's henhouse

Even as the Democracy 21 investigators were at work, ambitious bipartisan measures to overhaul the system were being advanced in Congress by Sens. McCain and Feingold and by Reps. Christopher Shays, R-Conn., and Martin Meehan, D-Mass. McCain and Feingold waged an epic seven-year battle to get their landmark campaign finance reform bill past fervent opposition. In late March, the supporters outmaneuvered the opponents for a final time, winning legislative approval for a bill formally known as the Bipartisan Campaign Reform Act. Public support for the measure was so strong that President Bush was compelled to sign it into law despite his earlier opposition.

The main thrust of the measure was to choke off soft money. The bill prohibits federal candidates and national parties from raising or spending soft money, even for state party activities. The president, for example, is prohibited from asking rich donors to give contributions over $25,000 to state party committees. Additionally, the law puts a check on state party usage of soft money to influence federal elections -- money used for advertising mentioning a candidate, or get-out-the-vote drives, for example. The bill also places new restrictions on the kind of advertising that can be done by special interest groups close to an election. The bill has other provisions, such as raising the maximum individual restriction limits and further tightening restrictions on foreign donors, but the heart of the law is its attack on large, unregulated contributions.

But while a legal challenge was inevitable, a challenge from the Federal Election Commission was predictable, too. The bloc of four reform opponents was in place and they were facing their biggest challenge -- and a cursory review of their résumés makes clear that even Bush's signature was no guarantee that the law would be put into effect.

• Bradley Smith has never been a Republican activist, but as a professor at Capital University Law School in Columbus, Ohio, he gained notice in Washington for his frequent articles blasting campaign finance reform. McConnell views his recruit as an ideal choice for the commission.

  "Professor Smith is a First Amendment scholar and the most qualified commissioner in the history of the Federal Election Commission," McConnell said in a prepared statement. "His constitutional expertise is particularly needed at an FEC that has a dismal string of losses in federal court. I believe the FEC needs at least one commissioner who understands the First Amendment and respects Supreme Court precedent."

  Smith sees himself as a civil libertarian pulling for the underdog. In his view, campaign finance regulation restricts speech, is vulnerable to loopholes and helps incumbents at the expense of challengers. In a commentary written for the Wall Street Journal in March 2001, after his appointment, Smith accused McCain and Feingold of a cynical ploy to silence critics with their bill's advertising restrictions.

  Contrary to the findings of Democracy 21, Smith, like McConnell, says the commission has been too aggressive in the past, venturing into areas where it has repeatedly been struck down by the courts.

  "I certainly wasn't chosen for my partisanship," he says. "I was selected because there was a great number of people in Congress who I think represent a great many people in this country who felt this commission had gone the wrong direction and needed a voice that would pull it back to the center."

• FEC Chairman David Mason was deeply involved in the Republican Party prior to his 1998 appointment. He served in both Ronald Reagan's and former President George H.W. Bush's defense departments, and has served on the staffs of several House and Senate members, all Republicans. He ran for the Virginia House of Delegates on the Republican ticket in 1982, but lost.

  In a report for the conservative Heritage Foundation titled "Why Congress Can't Ban Soft Money," Mason made his objection clear: "Congress should recall that existing practices are direct responses to previous attempts to regulate political activity. As 'hard money' (direct expenditures on campaigns) was limited and regulated, activists simply changed tactics ... The real solution to the problem of soft money lies in minimizing, not expanding, government controls."

  Mason did not return calls for comment.

• Michael Toner is the most recent commission appointee, taking the post during a congressional recess in March -- two days after Bush signed McCain-Feingold. Toner's choice represented a slight departure from the traditional appointment process, in that Bush chose him rather than support the Republican congressional choice, former commissioner Daryl Wold. But critics were hardly relieved by Bush's break from tradition. Like Smith and Mason, Toner has denounced campaign finance reform, though not as often or with as much furor. And he is much closer to the Republican Party apparatus.

  Immediately before his appointment, Toner was general counsel at the Republican National Committee, which soon would file suit to overturn the reform law. Before that, he was general counsel on the Bush-Cheney presidential campaign. He also worked as a counsel to the Dole-Kemp ticket in 1996.

  It was during his time with the Republican National Committee that Toner publicly opposed the McCain-Feingold bill. "Democrats are driving legislation that will put a stake through the heart of grass-roots and voter-education initiatives," he told the Associated Press in July 2001.

  Like Smith and Mason, Toner has issued assurances that his views of campaign finance, and his relationship with the Republican Party, will not unduly influence his actions on the commission. In fact, Toner said in an interview that his involvement with the GOP is an asset to the commission.

  "I think my having worked in the trenches, advising candidates, political staff, the RNC -- people who've had to deal with all these regulations -- about what they need to do [is] a healthy and positive perspective," he says. "You've got to tell people what they can and cannot do. The rules have got to be made as clear as possible."

• Democrat Karl Sandstrom was appointed in 1998. Before that he was chairman of the Administrative Review Board at the Department of Labor and served on the Subcommittee on Elections in the Democrat-controlled House during the late '80s and early '90s. He doesn't have the ideological baggage that his Republican counterparts do, but he has largely voted like them, shying away from strong enforcement action, refusing to pursue action in the Clinton and Dole television ad fiascos and asserting himself to water down McCain-Feingold.

  Sandstrom's actions seem to stem from a belief that attempts at campaign finance regulation are so complicated that enforcing them is often impossible. His common refrain is that laws need to be made clear and "concrete" before they can be enforced.

  "Before we can enforce the law the public must be made aware of what the law is," he said in a recent interview. "People active in politics are [sometimes] uncertain as to what the rules are. That is not a healthy situation. Either people proceed at some risk or they do not engage in political activity because they are fearful they might violate an uncertain standard."

The cautious approach and the narrow interpretations are frustrating -- sometimes maddening -- to their two colleagues, Scott Thomas and Danny McDonald. Both, surprisingly, were appointed by President Reagan, and both have been bluntly critical of the majority.

"I view my role as primarily trying to give my colleagues the courage to enforce the law as Congress intended," Thomas said in an interview. "At least from my perspective, commissioners are spending too much time trying to figure out ways not enforce the law, or to enforce it in a way that is focused only on rather insignificant little cases, and finding ways to drop the big cases."

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