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Watchdogs Demand Recusal by Smith on 527 Case

In a highly unusual move, several leading campaign watchdog groups are seeking to force Federal Election Commission Chairman Bradley Smith to recuse himself from handling a complaint that the organizations recently filed against the controversial 527 group known as Swift Boat Veterans for Truth.

In a “motion for disqualification” filed with the FEC on Monday, the heads of Democracy 21, the Campaign Legal Center and the Center for Responsive Politics argued that “Chairman Smith has prejudged the outcome of the complaint, and therefore is unable to render an impartial decision in connection with this matter.”

Smith said he plans to seek advice from the FEC’s ethics counsel on the matter and “then take action.” But he suggested that he has become a whipping boy for watchdog groups.

“I may decide to recuse myself regardless of what the ethics counsel says,” Smith remarked. “Whichever I do, they’ll say it’s proof I’m not fit to be a commissioner. But in the end, I’m still a commissioner and nothing’s going to change that.”

The three groups had lodged their original complaint in August, alleging that the Swift Boat Veterans was illegally funding anti-Kerry advertisements with soft money.

Smith, who had not yet seen the motion late Monday afternoon, has publicly defended the independent group’s right to run ads.

“I think it’s great 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,” Smith recently told a Bloomberg Television reporter.

The FEC chairman made similar comments on C-SPAN, arguing that “it’s very hard to object to … something like Swift Boat Veterans for Truth.”

In a response to a C-SPAN caller, he noted that a number of liberal-leaning groups such as the Media Fund have raised more money for similar efforts and said he found it “somewhat ironic to find such a fuss made over this one little tiny group that’s coming at it from the other direction.”

Democracy 21 President Fred Wertheimer said that such comments show Smith’s bias, which ought to pull him out of consideration of the matter.

“What he’s done is highly unusual,” Wertheimer said of Smith’s remarks to the media.

This is not the first time reform champions have requested that Smith not participate in official agency proceedings. In 2002, the authors of the Bipartisan Campaign Reform Act demanded that Smith and fellow Republican Commissioner Dave Mason sit out of the BCRA rule-writing process. The commissioners refused to recuse themselves.

The groups’ just-filed motion for disqualification notes that regulations issued by the Office of Government Ethics state that federal employees must “act impartially and not give preferential treatment to any private organization or individual.”

The motion also notes that the FEC’s own ethics rules forbid commissioners or other FEC employees involved in the “decisional process” — such as a pending enforcement matter — from engaging in “ex parte” communications.

“A basic requirement for all federal regulatory officials is that they not prejudge the facts of the cases before them,” said Potter, himself a former Republican chairman of the FEC. “Another basic requirement for an FEC commissioner is that he or she not discuss confidential enforcement matters in public.”

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