The Campaign Legal Center: Campaign Finance Groups Request FEC Commissioners to Disqualify FEC Chairman Bradley Smith from Swift Boat Complaint

The leaders of three campaign finance groups today filed a motion calling on the Federal Election Commission (FEC) to disqualify the agency's chairman, Bradley Smith, from "any participation" in the FEC's adjudication of a complaint filed on August 10, 2004 by the reform groups against Swift Boat Veterans for Truth (SBVT).

The motion cites comments made by Chairman Smith about SBVT in recent public appearances, which "compel his disqualification from all Commission proceedings" in the case.

According to the motion, Chairman Smith's comments "go directly to the issues raised in movants' complaint, and indicate that he has inappropriately reached - and effectively announced - his decision in this matter and his support for the activities of SBVT as that group attempts to influence the upcoming Presidential election."

The complainants include Trevor Potter, a former FEC Chairman and president of the Campaign Legal Center, Larry Noble, a former FEC General Counsel, who also served as the FEC's designated ethics officer, and now serves as executive director of the Center for Responsive Politics, and Fred Wertheimer, president of Democracy 21.

According to Trevor Potter, "FEC Commissioner Brad Smith's behavior clearly disqualifies him from rendering the required impartial judgment on the Swift Boat complaint. This is a serious matter. A basic requirement for all federal regulatory officials is that they not prejudge the facts of cases before them. Another basic requirement for an FEC Commissioner is that he or she not discuss confidential enforcement matters in public. FEC Commissioner Smith appears to have broken both of these rules in his comments on the Swift Boat case."

According to Larry Noble, "FEC Chairman Bradley Smith has long demonstrated his hostility to the campaign finance laws he is charged with enforcing. Now, he has gone even further and publicly embraced the activities of the Swift Boat Veterans for Truth after we filed a complaint asking the FEC to find those very activities unlawful. His participation in this case is inappropriate and would only further undermine an already discredited FEC."

According to Fred Wertheimer, "Chairman Smith's comments expressing support for activities that are being legally challenged in a case pending before him and the other FEC Commissioners constitute egregious conduct and a complete disregard for Smith's public duties as a Commissioner. We're dealing here with the appearance and the reality of bias and partiality by an FEC Commissioner in a case involving the most central campaign finance issue of the 2004 election - the role of 527 groups."

Chairman Smith Comments on Central Issues in Swift Boat Complaint

Chairman Smith's comments "show both the reality and appearance of bias and partiality on the central issues presented in the complaint" against SBVT, according to the motion.

The SBVT complaint, as stated in the disqualification motion, alleged that SBVT "has unlawfully failed to register as a political committee and is illegally raising and spending soft money on advertisements intended to influence the 2004 presidential election." According to the motion, the complaint argues that federal law "requires that SBVT register with the Commission as a political committee and comply with the contribution limits and source prohibitions that apply to funds raised by political committees."

The SBVT complaint further asserts, according to the motion, that "the Supreme Court has made clear - most recently in its McConnell decision - that the 'express advocacy' test is inapplicable to groups like SBVT whose major purpose is to influence federal elections. Accordingly, the express advocacy test does not apply to SBVT and does not provide that group or any other section 527 group with a legal basis for failing to register as a political committee."

The motion cites the following statements made recently by Chairman Smith that "show clear support for SBVT on the matters raised in our complaint":

* An article on Bloomberg.net from August 24, 2004, titled "Federal Election Commission Chairman Defends Swift Boat Ads," reports Chair ma n Smith saying, with reference to the Swift Boats ads: "'For the Kerry group to be complaining' when Democratic donor-funded groups have raised much more 'seems a little bit absurd.'" The same article reports an exchange Chairman Smith had with a reporter for Bloomberg TV:

* Chairman Smith again expressed this same support for the Swift Boat group at a public forum at the Cato Institute on September 17, 2004 , also broadcast on C-SPAN:

And to take one example, it's very hard to object to…something like Swift Boat Veterans for Truth… [T]hey're about 260 guys and from what I can tell they are all about pretty average citizens; they're not a bunch of really wealthy people…And they were able to produce and publish because one or two people gave them large contributions in excess of $100,000, that got their first ad out and that started to get them free publicity. And the small contributions started rolling in. But how can you complain?

In a separate interview with Bloomberg Radio, Chairman Smith said the following on a central issue in the pending FEC complaint against the Swift Boat group - whether the "express advocacy" standard is applicable to the 527 group:

Q: These ads and activity groups we are talking about are funded by so-called 527 groups, named after the portion of the election law that allowed them. Can you define for us what a 527 group is allowed to do and perhaps what they are not allowed to do?

A: A 527 group is allowed to do political activity that stops short of specifically advocating the election or defeat of a candidate for office. If they do the latter, they become a federal political committee, still under section 527, but they are subject to a whole new range of regulation and reporting requirements. But as long as they avoid expressly advocating the election or defeat, they can say a great deal about issues and candidates.

According to the motion, "Chairman Smith's comments on this ma tter were sufficiently clear that Political MoneyLine, an online database of campaign finance activity, led its August 30, 2004 update with the headline 'FEC Chair ma n Votes Early in Compliance Case'" and noted the following:

In an extremely rare instance, an FEC Commissioner has spoken openly about his views on the complaint and the persons involved in a current ongoing compliance case. Republican Chair ma n Brad Smith spoke to Bloomberg TV and defended the right of a section 527 organization, Swift Boat Veterans for Truth, to TV ads against Democratic presidential candidate John Kerry. Kerry had earlier filed a complaint at the FEC against the Sec. 527 organization. FEC rules require confidentiality of current investigations and there are criminal penalties for violating the rule. It is the nor ma l practice of the Commissioners to avoid any public comment about respondents - and even the complainants during compliance matters.

The Appearance and Reality of Bias

In their Motion to Disqualify, the reform leaders write, "Whatever views Chair ma n Smith ma y have on the law as a ma tter of policy, it is absolutely inappropriate for him to comment publicly on the merits of a pending enforcement action, which is in the nature of an agency adjudication."

They further state:

Federal regulations issued by the Office of Government Ethics (OGE) ma ke it clear that it is a basic obligation of public service that federal employees "act impartially and not give preferential treatment to any private organization or individual." Moreover, federal employees also must "endeavor to avoid any actions creating the appearance that they are violating the law or the ethical standards" set forth in the OGE regulations. Chair ma n Smith has not only failed to act impartially, he has taken actions that have created, not avoided, the appearance of partiality.

The motion also points out that the:

FEC's own regulations governing the ethical conduct of its employees further illustrate why Chairman Smith should be disqualified in this ma tter. Those regulations provide, for example, that no Federal Election 'Commissioners or any employee involved in the decisional process shall ma ke or entertain any ex parte communications' in connection with enforcement actions pending before the Commission…. This prohibition against ex parte contacts is ' to avoid the possibility of prejudice, real or apparent, to the public interest in enforcement actions pending before the Commission[.]'

According to the movants, "In connection with this ma tter, Chair ma n Smith has not engaged in an ex parte communication, he has done worse. Here, by ma king statements that show his support for the Respondent's position - which he repeatedly calls 'great' - Chairman Smith has publicly embraced the position of Respondent SBVT and pre-judged the very ma tter that is pending before the Commission."

The reform groups point out that the case law in the D.C. Circuit " also requires disqualification of agency officials when their public statements about pending cases reveal they have 'in some measure adjudged the facts as well as the law of a particular case in advance of hearing it.'"

According to the motion, "At a minimum, the appearance Chair ma n Smith has created is that he has ' adjudged the facts as well as the law' in connection with our pending complaint against SBVT 'in advance of hearing it.'"

The movants call for Chairman Smith's recusal from the case, concluding:

[I]n light of Chairman Smith's inappropriate comments that demonstrate bias and prejudgment of this matter, complainants request that the Commission disqualify Chairman Smith from any participation in this matter in order to ensure that the decision the Commission ulti ma tely reaches is a fair one, free of the taint of the biases Chair ma n Smith has shown.

The three reform groups have filed a number of complaints with the FEC this year against pro-Democratic and pro-Republican 527 groups, including complaints against America Coming Together, The Media Fund, the Leadership Forum, Progress for America Voter Fund, Swift Boat Veterans for Truth and Texans for Truth. The FEC has yet to act on any of these complaints.

Click here to view a copy of the motion.

Click here to view exhibits A through E.