Taking Aim at Mr. Smith
York, Byron
t was one of those abrupt Tim Russert maneuvers designed to keep guests of "Meet the Press" on their toes. Last summer Russert was questioning Senate Majority Leader Trent Lott about the...
...If the money were generated by the government and given to the candidates," he says, "I would have no problem with ten times what is spent on campaigns...
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...The very first time I appeared with him, we had this nice conversation beforehand, and then he gets up to talk and it's like, 'BRAD SMITH LIVES IN BIZARRO WORLD...
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...Nothing Short of Radical In the last months of 1998, word began to spread on the Hill that Lee Ann Elliott, a Republican commissioner on the FEC, was likely to retire...
...And that's okay with Smith...
...McConnell seems undisturbed by the prospect of an extended standoff--"We can survive with a vacancy on the FEC," he says-and he won't rule out the option of holding up future Clinton appointments...
...Slings and Arrows Smith is at his desk in the law school, with Bach coming from a small boom box sitting on a shelf behind him...
...But Smith might someday receive a higher reward: not a job on the FEC, but the knowledge that at a time when the Washington establishment was embracing a flawed and harmful idea, he made a clear-eyed case for a better way...
...HE'S, LIKE, NUTS!' He went off on a really wild attack...
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...The Times found it "troubling" and used the occasion to take another whack at Smith...
...or 24-hr...
...His position that the FEC is not legitimate disqualifies him from serving on the FEC...
...A twist of the wrist converts it to a [ 3x telescope, or a unique 3x telescope-loupe...
...Your candidate for the Federal Election Commission...
...He also points to the campaign of Michael Huffington, who spent $28 million of his own money in a losing bid for a Senate seat from California...
...Spending a lot of money helps a candidate be heard, but it does not necessarily mean that the voters will like what they hear...
...And they established the FEC to enforce the rules...
...There is some cost/benefit analysis to be done here," he says...
...Indeed, they're ratcheting up the sleaze...
...Last summer Russert was questioning Senate Majority Leader Trent Lott about the economy when he suddenly asked, "Who is Bradley Smith...
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...After a while, the Republicans backed down and approved the Holbrooke nomination...
...So what to do...
...Wertheimer, Simon, and Rosenkranz had sent an advance copy of their letter to Wall Street ]oumal columnist A1 Hunt, who used it in an article timed to appear the day the letter was released...
...Fred Wertheimer and Donald Simon did not respond to interview requests for this story...
...After earning his law degree in 199 o, Smith joined a law firm in Columbus...
...Smith points out that the goal of having a nation of small contributors is not only unrealistic--few Americans actually give to campaigns--it would not bring politics any closer to the people...
...And they favor society's elites...
...At that point the high priests of campaign finance reform went ballistic...
...And on the idea that money corThe American Spectator _9 Fe b r uary 2 o o o rupts candidates, Rosenkranz dismisses Smith's reliance on studies showing little overt policy-for-contributions trading...
...While campaign contributions may influence votes in a few limited cases, this would not seem to justify wholesale regulation...
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...So today, nearly nine months after his name first surfaced as a nominee, Smith finds himself in the middle of an intense and potentially ugly battle between the Senate Republican leadership and the White House over the future of campaign finance reform...
...I'm not going to go on the commission and say, 'Look, I don't believe in this $1,ooo limit crap' and not enforce it," Smith says...
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...Or Ronald Lauder, who spent $14 million trying to win the Republican nomination to be mayor of New York...
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...In the 1993-1994 election cycle, for example, all congressional candidates combined spent about $665 million dollars...
...Another twist, and you have a choice of magnifiers and loupes: 5x, 10x, and 15x powers...
...My position is that the vast majority of what the legislature does by way of favors is in huge omnibus bills that fall under the radar screen...
...In July, McConnell and Lott struck back by holding up the nomination of Richard Holbrooke, Clinton's choice to be ambassador to the United Nations...
...My first thought was, 'They've got to be just looking at me to put my name on the list so that whoever they really want will look less radical," he recalls...
...They are not secrets...
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...The mere possibility of such an appointment underscores the brazen arrogance of Washington's political elite who, after the most corrupt election since Watergate, resist cleaning up the system," Hunt wrote...
...In 1994, Oliver North raised about $20 million, The American Spectator _9 February 2000 23 almost all of it in small contributions, for his Virginia Senate race--and lost...
...he puts a lot of faith in the voters...
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...Lott seemed a litfie startled...
...Where contributions and voting patterns intersect," Smith writes, "they do so largely because donors contribute to those candidates who are believed to favor their positions, not the other way around...
...If campaign contributions have any meaningful effect on legislative voting behavior," he writes, "it is on a limited number of votes, generally related to specialized or narrow issues arousing little public interest...
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...Given that we have disclosure, which I think is certainly justified, somebody needs to enforce that," he says...
...Everything You Know Is Wrong The target of Smith's criticism is a series of laws passed in 1974, the so-called "post-Watergate reforms," that created the campaign finance system we have today...
...Tou've got all these groups with millions and millions and millions of dollars in funding," Smith says...
...Whatever their specific disagreements, that is the nub of the disagreement between Smith and the reformers: They want taxpayer-financed campaigns and he doesn't...
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...While reformers argue that new and tighter laws are needed to clean up the system, Smith says just the opposite...
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...The new laws, which were actually amendments to the earlier Federal Elections Campaign Act, also required candidates to disclose the names of their contributors...
...Ask him to elaborate and he'll tell you it's the contribution and spending limits, not the FEC itself, that should be eliminated...
...After graduating in 198o, he entered 22 February 2o o o " The American Spectator the service and spent two years as a vice-consul at the U.S...
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...Smith thought it over during the Thanksgiving holiday and called back to say yes...
...Smith, Rosenkranz says, "complains bitterly that we've misrepresented his views, but the heart of the FEC Act is the contribution limits and other regulations that Brad finds intrusive and illegitimate and unconstitutional...
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...in the past the White House has simply rubber-stamped both party's choices...
...indeed, the Times applauded him for doing it...
...Would he be interested in the job...
...Until last spring, the two sides sparred mostly in seminars and academic papers...
...she didn't put her name on the leaflets but instead signed them "Concerned Parents and Taxpayers...
...Spending, therefore, translates directly into a better-informed public...
...For that they took another shellacking in the press...
...Right," Lott repeated...
...How he got there is a lesson in the price one pays for questioning the conventional wisdom on the subj ect of money and politics...
...Whereupon Mitch McConnell became very, very angry...
...SVe don't intend to send the president another name...
...Rosenkranz carefully outlines his objections to Smith's "four faulty assumptions of campaign finance reform" argument...
...Given that we have public financing at the presidential level, somebody needs to administer that, and I think the FEC is the logical place for that to be done...
...It didn't make sense...
...But it's likely that in the coming months more people will learn who Brad Smith is...
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...The anecdotal evidence speaks more strongly than the data," he says...
...So Clinton refused to pass Smith's name on to the Senate...
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...Or is he doing it because the NRA has more than three million members, many of them single-issue voters...
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...I knew that Common Cause and those guys would go berserk," he says of the reaction to his nomination...
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...Large numbers of Americans have come to view legislative politics as a money game, in which campaign contributions are the dominant influence on policymaking," Smith writes...
...And of course there is Phil Gramm, who spent nearly $3 ~ million chasing the 1996 Republican presidential nomination and didn't get past the Iowa caucuses...
...The piece caught the eye of a top official at the Cato Institute, who asked Smith to write about the subject in greater depth...
...No...
...Would you have a problem if Steven Spielberg gave five million dollars to the Democratic National Committee...
...But Smith has his doubts...
...Each candidate must be officially nominated by the president...
...I actually don't believe that," he claims...
...At the same time, Rosenkranz speaks favorably of a proposal under which the government would give each voter $5 ~ , which the voter could donate to the candidate or party of his choice--which, of course, is a scheme based on the idea that small (government-paid) contributions are superior to big ones...
...In fact, they are sometimes made into campaign issues...
...No...
...The whole process has been a lesson in politics, Washington style...
...They were mistaken...
...And elections are overwhelmingly won by the candidate who spent the most...
...Just before Thanksgiving, staffers for Mitch McConnell got in touch with Smith...
...Still not satisfied with his career, he decided a few years later to try law school...
...It's not one of my assumptions...
...If you cannot raise a certain amount of money, you are simply not a viable candidate...
...And the Republicans refused to back away from him...
...That is not beyond the realm of possibility," he says...
...The only thing that keeps the whole thing afloat, that keeps the campaign finance regulation movement alive, is money, because the public doesn't care...
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...The answer is simple: That's not what Smith believes...
...A talk with McConnell sealed the deal, but there was no public word of Smith's selection until May, when his name first appeared in print as a possible successor to Elliott...
...Bradley Smith is your candidate--" Russert said, helping out...
...Is he doing it because he agrees with the NRA's position...
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...He teaches civil procedure and also runs a seminar on election law...
...He points to a number of academic studies that have shown that three other factors outweigh campaign contributions in determining a legislator's vote: party affiliation, ideology, and constituent views and needs...
...Individuals cannot give more than $1,ooo to any political candidate...
...They get all this money, they've got a million groups, and then there's...me...
...the flaw in their strategy was that they held up a high-profile nomination over a low-profile one and thus seemed to be taking disproportionate action...
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...Similar comparisons to all sorts of things--yogurt, soap, video rentals, you name it--make the same point: Surely our political system is worth as much as we spend on these everyday items...
...There's all kinds of leverage...
...Accepted at Harvard, he developed an interest in campaign law when he wrote a paper for his adviser, Christopher Edley--who would later join the Clinton administration--on the rights of third parties to appear on election ballots...
...Two million dollars...
...But then a top McConnell aide called to discuss the issue, and Smith realized that the Republicans really meant what they said...
...The Act created the FEC, Rosenkranz reminds us, so how can Smith serve on a commission that he believes should be abolished...
...And besides, since contribution limits are the law today, Smith says he would have no problem enforcing them...
...The most sensible reform is a simple one: repeal of the Federal Elections Campaign Act...
...Nor will he ignore the rest of the law...
...Cheered on by the reform groups, the president refused to nominate Smith...
...While all those are legitimate points of disagreement, Rosenkranz and his allies believe there is one killer argument against Smith...
...We don't try to tell the Democrats who to put on the FEC and they don't tell us who to put on the FEC," he says...
...On the contrary, Smith argues, there is not enough money spent on political campaigns...
...Smith saw the Mclntyre case as a classic example of campaign laws, especially campaign finance laws, stifling political expression (almost all states have statutes similar to the one used against Mclntyre...
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...And Mitch McConnell...
...Lott and McConnell expected Clinton to do that with Smith...
...I started to think, 'All of the conventional wisdom on this subject is flawed,'" he said recently in an interview in his office at Capital University...
...If that were done, the FEC would still have things to do, like managing the instant disclosure of contributions, a reform that almost everyone favors...
...So Smith began reading the literature of campaign finance law...
...The laws, Smith concluded, can be used to browbeat ordinary citizens, subjecting them to years of court battles and legal fees...
...In fact, however, those candidates who have been best able to raise campaign dollars in small contributions have often been those who were most emphatically out of the mainstream of their time...
...The language in which campaigns are described in the general press constantly reinforces that perception," Smith has written...
...red you--and to t~qoy outstmutof listening to the world ing FM stereo reception...
...Or Steve Forbes, who has spent about $60 million to secure an also-ran standing in the polls in the current presidential race...
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...Elliott's term would expire in May 1999, they said...
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...Right...
...Don't look for that to happen anytime soon--for either McConnell or Brad Smith...
...His policy paper for Cato prompted invitations to testify before congressional committees, which in turn brought more opportunities to speak publicly...
...9 The last assumption is that money corrupts candidates...
...Candidates who accept federal matching funds must abide by strict state-by-state limits on how much they can spend...
...The hold was a "serious abuse," wrote the Post, "a petty act in the name of a suspect cause...
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...Finally, McConnell wants to send a message to those who think he should choose a candidate who embraces the conventional wisdom--or at least the status quo--on campaign finance...
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...He has become a political hero of mine," Smith says of McConnell...
...Brad Smith," Lott said with a glint of recognition...
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...Supreme Court overturned her conviction, calling her pamphleteering "the essence of First Amendment expression...
...So they lost and Clinton won...
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...In a column that later became a staple of the campaign finance debate, Smith pointed out that in 1994 alone, Americans spent about $4.5 billion on potato chips...
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...Smith also cites research showing that the more that is spent on a campaign, the more likely voters are to be aware of the candidates and the issues...
...All of those, to me, are issues for the voters," Smith continues...
...But the bottom line for me is that Brad Smith is the James Watt of campaign finance reform...
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...In the first two weeks of June, they launched a full-scale attack...
...or to people...
...Indeed, such a view is a common theme of almost all press coverage of the campaign finance issue...
...His point is not that the law should be disregarded--it is that the law should be changed...
...A pro-tax school official lodged a complaint against Mclntyre with the Ohio Elections Commission, which used the state's campaign disclosure laws to charge Mclntyre with distributing anonymous campaign material...
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...They call him a thug and a bully and the Darth Vader of campaign finance...
...Candidates 'amass war chests' with the help of 'special interests' that 'pour' their 'millions' into campaigns...
...Mclntyre distributed leaflets opposing the tax...
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...Soon, friends were calling to rib Smith on a name recognition so low that even his Senate sponsor couldn't remember it...
...According to the conventional wisdom of campaign finance, the years since 1974 have seen a rising number of "abuses" of the system, among them the emergence of soft money contributions, third-party expenditures, and creative accounting by candidates and political parties...
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...Mclntyre appealed her case to successively higher courts, and in 1995 the U.S...
...Or A1 Checchi, who spent $4 ~ million trying to win the Democratic gubernatorial nomination in California...
...getting rid of the limits on campaign contributions and spending that have been in place since 1974 . Views like that have made Smith the bore noir of Common Cause and a host of other pro-reform groups...
...Rosenkranz also dismisses Smith's assertion that reformers base their beliefs on the idea that campaigns funded with small donations are more democratic than those funded with large donations...
...9 The third assumption is that money buys elections...
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...Would you have a problem," he is asked, "if Philip Morris gave a million dollars to the Republican National Committee...
...Smith argues that it happens less frequently--and for more complex reasons-than the reformers think...
...Obscene' expenditures 'careen' out of control or 'skyrocket' upwards...
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...Concerned Parents and Taxpayers Brad Smith grew up in Trenton, Michigan, a suburb of Detroit...
...He didn't know quite what to make of Lott's performance...
...Smith didn't believe they were serious...
...In December 1994, Smith wrote an article about the Mclntyre case for the Washington Times...
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...It is an article of faith in reformist literature that our system has grown less responsive to popular will in the last century," he writes...
...Neither paper criticized Clinton for putting what was, in effect, a hold on the Smith nomination...
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...9 The second assumption is that campaigns funded with small contributions are somehow more democratic than those funded with large ones--the fundamental idea behind contribution limits...
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...As to whether too much money is spent on campaigns, Rosenkranz says that's not really the issue...
...Smith found that academic life agreed with him and has been at Capital ever since...
...For example, Barry Goldwater's 1964 presidential campaign raised $5.8 million from 41o,ooo small contributors--only to lose in a landslide...
...But in doing that, he knows he's going against the enormously rich and powerful campaign finance reform machine, the Pew Charitable Trusts and the Ford Foundations and the Common Causes and the Bill Moyers of the world...
...Next came the New York Times...
...The liberals need to understand," he says, ] "that as long as I am chairman of the Rules Committee and am making the recommendations to Senator Lott, there ain't going to be anybody that they like...
...He was educated in the public school system and in 1976 entered Kalamazoo College, where he became interested in joining the U.S...
...The White House, the reformers, and the press all agreed that even the most minimal devotion to good government demanded the Smith nomination be killed...
...Bizarro World While all this goes on, Brad Smith drives each dayto his office at Capital University, teaching his classes and reading his press clips...
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...He argues that it was the Campaign Act itself that created the mess and that' new reforms are bound to fail because the entire campaign finance reform movement is based on faulty assumptions...
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...Smith's] views about what the First Amendment means are a lot closer to the law of the land than those who are criticizing him, so who's an extremist here...
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...Smith made his most direct statement in a March 1997 piece in the Wall Street Journal...
...Brad Smith, they wrote, is "unfit to serve as a commissioner of the FEC...
...It has perfect heft and feel and, of course, just like its predecessor, it writes like a dream...
...Smith writes that in the 1994 House races, the 34 Republicans who defeated Democratic incumbents spent an average of twothirds what their opponents spent...
...while Margaret Mclntyre was being prosecuted for handing out anti-tax leaflets, influential media figures like Rupert Murdoch and Donald Graham and Rush Limbaugh and Barbra Streisand were free to express their political views to millions of people...
...When a law is in need of continual revision to close a series of ever-changing 'loopholes,'" he wrote, "it is probably the law, and not the people, that is in error...
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...The lines were drawn...
...Not thrilled by the idea of a career working for the govemment--a bureaucracy is a bureaucracy, he felt, even if it was in a lovely foreign locale-- Smith left in 1983 to join a Michigan insurance company...
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...That sounds familiar...
...That is the classic good-government horror scenario, the back-room, you-scratchmy-back-and-I'll-scratch-yours fix which results in lO,OOo-page tax bills full of special-interest exemptions...
...Then the Washington Post wrote that if Clinton went forward with the nomination, he "would betray every pious utterance [he] has ever made about campaign finance reform...
...If he were a liberal, he'd be getting Kennedy awards for courage...
...On the contention that money buys elections, Rosenkranz says, "No one can deny that fundraising and spending in elections have set a baseline price of admission...
...The E p ~ ' " is the first choice of geologists, biologists, numismatists, philatelists, engineers, and just anybody who likes to see the infinite detail in his/her surroundings...
...They point to his "repeal the Federal Elections Campaign Act" sentence from the Wall Street Journal as the single most important reason the nomination should be defeated...
...he began...
...He stands up there and he takes all the slings and arrows the Washington Post and the New York Times can throw at him...
...Is he doing it because of the money...
...Aw, c'mon," he said to the senator's image on the television, screen...
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...But in May, Lott and Senate campaign finance point man Mitch McConnell chose Smith to fill a recently vacated seat on the Federal Election Commission, the body that enforces the election laws...
...he'd be happy to see more spent, as long as the funds came from the taxpayers...
...To much of Washington, it was the purest heresy, for which Smith would soon be punished...
...He points to four: _9 First, that too much money is spent on campaigns...
...Instead of scouring the country for a distinguished individual with a passion for reform," 24 Fe b r uary 2 o o o _9 The American Spectator the paper editorialized, "Senate Republicans are said to be considering an Ohio law professor whose writings make plain his hostility to the agency he would be joining and the campaign finance laws it is supposed to enforce...
...I respect him as a scholar and a thinker," an innocentsounding Rosenkranz says when asked about Smith...
...By 1996 , when Smith wrote his most extensive study on the subject, for the Yale Law Journal, he had become the man to read on campaign finance...
...After his arrival in Columbus, Smith discovered the case of Margaret Mclntyre, a woman who in 1988 campaigned against a proposed school tax increase in her hometown of Westerville, Ohio...
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...Smith doubts that any sort of "reform" would change the situation...
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...There is no second choice," McConnell says...
...Josh is mean to me," he says in a mock wounded tone...
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...Smith says he has come to greatly admire his Senate patron, who has stuck to his guns even while enduring a terrible beating in the press...
...On June 3, Fred Wertheimer, long-time head of Common Cause and now president of the pro-reform group Democracy 21, Donald J. Simon, the acting president of Common Cause, and Joshua Rosenkranz, executive director of the Brennan Center for Justice at New York University, sent a letter to President Clinton...
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...Now, let's see...
...Rodelsonix IX TM only $69...
...The crystal is "mineral glass"--it is virtually scratch-proof...
...His views are "nothing short of radical," and appointing him to the commission would be "an act of utter disdain and disrespect for the laws...
...Say a legislator does a favor for the National Rifle Association, which has contributed to his campaign...
...That's not to say Smith denies that money plays any role in shaping legislation...
...The Smith nomination was placed in limbo, where it remains today...
...In 1993, Capital University, a small school down the road from giant Ohio State University, asked Smith if he would be interested in a one-year teaching position...
...And a bit personal, too, like the occasions Smith has found himself sharing a podium with Joshua Rosenkranz...
...PowerVox VII TM (Hearing Mate) comes with b e l t / p o c k e t clip and two AAA batteries...
...Several hundred miles away, at his home in Columbus, Ohio, Bradley Smith, a mild-mannered, unassuming, 41-year-old professor at Capital University Law School, was watching "Meet the Press...
...In the midst of a continuing debate over campaign finance reform both on Capitol Hill and in the presidential race, Smith is emerging as the leading proponent of the view that past reforms have done more harm than good, and that further reform will only make the situation worse...
Vol. 33 • February 2000 • No. 1
