Brad Smith, former Federal Election Commission member and a scholar of campaign finance, has given no quarter on the shortcomings of McCain-Feingold.  He sees it as “Frankenstein’s monster, uncontrollable and wreaking havoc wherever it goes….”  The specific case prompting this observation was the FEC’s finding that Sierra Club had put out a voter guide so critical of candidates, so suggestive of a preference, that it was illegal.  Smith here defends the voter who, as a result of this guide, will see less of this information.  "FEC Ruling on Voter Guides Sets Bad Precedent," Roll Call (Nov. 20, 2006) (paid subscription required).  The result:  “less-informed voters and more campaign litigation, with the FEC, clever lawyers and federal judges replacing voters in deciding elections.” 

       But Smith goes in a different direction, in this same week, on redistricting reform.  In an opinion piece co-authored with Ned Foley, he disagrees with the reasoning of reform advocates who point to Ohio in contending that legislatures cannot be trusted with district line-drawing.  The Democrats won the state popular vote but Republicans came away with four more Congressional seats.  Bradley and Foley disagree over the significance of this fact.  Foley is troubled but Smith is not; Smith argues that this is a natural consequence of Republican success in three close races and that a shift of fewer than 10,000 votes would have supplied Democrats with seats in proportion to their vote.  A surprising ending is in store for the reader:  Smith throws his lot in with Foley in supporting reformed line-drawing, to be turned over to an independent, nonpartisan commission.

      Smith argues, with Foley’s concurrence, that redistricting reform will help end arguments over redistricting.  It is an antidote to suspicion:  “the value of a process that is perceived as fair is familiar….”  With an independent commission, “a party that wins fewer legislative seats than it thinks it should have will no longer be able to complain that the districting process was rigged against it.” 

      This is not, on Smith’s part, only a compromise of sorts with Foley.  It is, for him, a remarkable concession to reform argument.  At its core is attention to appearances—the perception of unfairness counting here more than Smith’s judgment, on the data, that no genuine unfairness had occurred. 

      Moreover, unlike the case of the Sierra Club voter guides, this is reform to settle an argument among elites, and between political parties, but with only indirect attention to the demands or interests of voters.  We can assume that voters read voter guides, and that by restricting their supply or fuzzying their content, they will have the benefit of less education on the issues (and less information even about how organizations of interest to them see the issues).  Redistricting can be argued on behalf of the voters only by positing that they should care about it—that it does, theoretically, implicate their interests—but on this issue, voters are rarely heard. 

      And most voters are happy to have like-minded voters share their district lines and like-minded Representatives speak for them in Congress.  The “competition” we believe that they are entitled to is an abstract proposition, and they can enjoy more than enough of it in other races for other offices.

      That a thoughtful critic of political reform—normally not taken with arguments about appearances and usually quick to spot insular obsessions among elites—would support redistricting reform is an event well worth marking.  It is not welcome news to those of us who retain skepticism about this reform:  who would not favor an “independent, nonpartisan commission” as a way to quiet reformist complaints about legislative line-drawing when these complaints remain questionable, as indeed Smith questions them, on their merits.

      Say it ain’t so, Brad….

Bob Bauer