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The FEC is MIA

A Senate tug-of-war over a controversial nominee has gutted the panel when we need it most.

January 13, 2008

As we head into the heat of the primary season, the agency charged with administering and enforcing federal election law is on ice, as nominees for four of the six seats on the Federal Election Commission await a break in a Senate impasse.

At issue is the nomination of Hans A. von Spakovsky, who served a recess-appointment term on the commission beginning in 2006 and has been held up in his confirmation process. The problem hasn't been with Von Spakovsky's decisions at the FEC, which by most accounts have been within the mainstream for Republican appointees. (The six slots are assigned on a straight partisan split of three Democrats and three Republicans.) Rather, Von Spakovsky is in trouble over his earlier tenure at the Justice Department's civil rights division, where he supported a Georgia voter ID law that was ultimately overturned by a federal judge. During his time at the Justice Department, he also contributed an article to the Texas Review of Law & Politics, under the alias "Publius," that argued in favor of laws like the Georgia one -- a potential, though not entirely clear, conflict with his day job.

To voting rights activists, Von Spakovsky is guilty of more than just questionable judgment. They charge that he's bent on disenfranchising Democratic voters, and his appointment has been hot enough to interrupt a pattern of cross-party deference that has held, with some exceptions, since the FEC's creation in 1975. By tradition, each party proposes its commissioners, the president nominates them and the Senate approves them, through consent rather than a formal vote. This fall, a group of Democratic senators, among them presidential candidate Barack Obama, placed a hold on Von Spakovsky's nomination. Republican senators shot back by holding up other FEC nominations, and the commission has been in limbo since existing terms ended in December.

Well, not entirely in limbo. The full-time staff continues to do reporting and analysis work, but without a full slate of commissioners, the FEC can't institute new enforcement actions or promulgate new regulations. That situation is less dire than it may seem: Campaign infractions generally don't get investigated until well after an election is over, and the remaining two commissioners are doing yeoman work in attending to current campaign matters. But it holds up citizens with innovative campaigns who need the commissioners' advice on whether their innovations would run afoul of federal law. It also may cause trouble when the time comes for candidates to begin funding their general election campaigns.

Not having a fully functioning FEC during a presidential campaign year seems goofy, and there is plenty of blame to go around. Start with the Bush administration, which resisted calls to find a replacement even after Von Spakovsky sent a farewell e-mail to his supporters. But Obama bears some blame as well. Whatever his philosophical objections to this nominee, it is at best unseemly for a presidential candidate to hinder the federal body charged with regulating his own campaign. Three other Democrats already have holds on the nomination; Obama should remove himself from this matter.

Finally, there's Senate Minority Leader Mitch McConnell, who rejected a recent compromise offer from the Democratic leadership in which Von Spakovsky and the other nominees would get an up-or-down vote on the Senate floor. The Democrats have 51 votes, and McConnell countered with an offer to let all four nominations go forward, but with a threshold of 60 votes, guaranteeing that the Democrats couldn't get their nominees approved without giving in on Von Spakovsky. And so the stalemate continues.

McConnell has a point. The custom of cross-party deference on nominees deserves respect, President Bush has never interfered with Democratic FEC nominees, and Von Spakovsky should be judged chiefly on his FEC tenure. But tradition doesn't give anybody a right to a commission seat. It may be worth revisiting the way FEC seats are divvied up -- the current way seems designed to please sitting politicians rather than produce a vigorous regulatory body. In the meantime, however, we have a Federal Election Commission whether we really need one or not, and it shouldn't be broken in an election year.

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