FEC Chairman May Recuse Himself from Judging Swift Boat Case

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The New York Sun

WASHINGTON -The chairman of the Federal Election Commission said he is considering recusing himself from judging a complaint against the Swift Boat Veterans for Truth, after the leaders of three campaign finance watchdog groups yesterday asked the commission to disqualify him from the case.


Mr. Smith denies that he broke the commission’s rules or prejudiced the outcome of a formal complaint against the group that is pending before the commission when he publicly discussed the veterans’ activities.


But in a complaint filed with the commission yesterday, the campaign finance groups cite comments Mr. Smith made to several news organizations in recent weeks as evidence that he has prejudged the matter.


“I think it’s great that we live in a country where 260 average guys can go out and put their point of view out there before the public and influence a major presidential race,” Mr. Smith was quoted as saying in a Bloomberg.net article published on August 24, according to the complaint.


The complaint also quote a September 17 appearance before the Cato Institute, in which he said in part, “It’s very hard to object to…something like Swift Boat Veterans for Truth” who “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…”


The Swift Boat Veterans group is a 527 organization that has been running TV ads critical of Senator Kerry’s war record that are paid for by large, unregulated contributions that would exceed legal contribution limits if the group was found to be a political committee.


Mr. Smith’s behavior “clearly disqualifies him form rendering the required impartial judgment on the Swift Boat complaint,” said the president of the Campaign Legal Center, Trevor Potter, a former chairman of the commission. He filed the complaint with the president of Democracy 21, Fred Wertheimer, and the executive director of the Center for Responsive Politics, Lawrence Noble.


The complaint mentions other similar comments, including a statement made by Mr. Smith to Bloomberg Radio that the activities of independent political groups called 527s are legal as long as they do not advocate the election or defeat of a candidate for office, the complaint states.


In an interview with The New York Sun, Mr. Smith rejected the allegations.


“I haven’t prejudged any of the issues in the complaint. …I said I don’t see what is horrible that [the Swift Boat veterans] are out there speaking. If they are financing their things illegally, that’s a separate question,” said Mr. Smith.


He said he is consulting with the commission’s in-house counsel to decide whether or not to participate in the case.


But Mr. Wertheimer said Mr. Smith should be removed.


“He is endorsing [the Swift Boat group’s] activities and creating a clear impression and appearance that he believes they are fine. He calls them great. That is an indication that he thinks they are legal,” he told the Sun.


A spokesman for the commission, Robert Biersack, said that the commission’s confidentiality rules have traditionally been interpreted to forbid commissioners and employees from discussing pending cases, but declined to speculate on whether Mr. Smith’s comments violated the rules.


Federal courts in the D.C. Circuit have required the disqualification of agency officials when their public statements about pending cases show that they have “adjudged the facts as well as the law of a particular case before hearing it,” the complaint states.


Advocates of stricter campaign finance laws have long criticized Mr. Smith, a Republican, for openly expressing the view that many campaign finance laws violate the right to free speech guaranteed by the First Amendment. He was appointed by President Clinton over the objections of many of the same people who now want to remove him and overhaul the way commissioners are chosen.


“They just want to keep re-fighting the confirmation battle of four years ago,” Mr. Smith said.


The Swift Boat group claims to have raised more than $6.7 million. Documents filed with the commission show that they have received large contributions from Texas Republicans, including $500,000 from Dallas oilman T. Boone Pickens.


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