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FEC Up and Up

Do we smell rats, or are our nostrils just paranoid? As the August break begins, both Democrats and Republicans are coming up with names of new nominees for the Federal Election Commission, raising the possibility that President Bush could make recess appointments and put two new commissioners in place until 2005 without Senate confirmation. And, there’s reason to worry that both might be hostile to campaign finance reform.

We expect this from Republicans, who stoutly opposed the Bipartisan Campaign Reform Act of 2001. Republican Commissioner David Mason, whose term expired in April, has been a down-the-line opponent of BCRA and, after it passed, consistently voted for FEC regulations weakening its provisions. As Roll Call reported Monday, Republicans are considering Alex Vogel, former general counsel of the National Republican Senatorial Committee and now chief counsel to Senate Majority Leader Bill Frist (R-Tenn.), to be Mason’s replacement.

But it’s the Democrats’ pick who could change the balance on the commission. To the shock and dismay of many BCRA backers, Senate and House Minority Leaders Tom Daschle (S.D.) and Nancy Pelosi (Calif.) have recommended Robert Lenhard, associate general counsel for the American Federation of State, County and Municipal Employees, who signed briefs on behalf of unions challenging BCRA’s constitutionality.

Sen. John McCain (R-Ariz.), co-chief sponsor of BCRA, said, “I have a hard time understanding why Senator Daschle, who helped pass McCain-Feingold, would want to put on the commission a dedicated opponent of campaign reform, someone who would use his position not to enforce the law, but weaken it.” Lenhard’s nomination to replace longtime reform champion Scott Thomas also has been protested by groups such as Democracy 21, Common Cause, the Campaign Legal Center and the Center for Responsive Politics.

The reformers’ suspicion is that Democrats suddenly realize campaign reform has been detrimental to their fundraising and to the ability of their allied interest groups — especially labor — to mount “issue ad” campaigns. Therefore, they believe, Democrats have decided to put a union representative onto the FEC to further weaken BCRA. Presumably, the FEC will have considerable new decision-making to do when the Supreme Court decides which parts of BCRA are constitutional and which are not.

Friends of Lenhard’s, on the other hand, claim he has just been acting as a lawyer representing his client and is not personally hostile to reform. Ellen Weintraub, current FEC chairwoman, vouched for him. And Lenhard himself told Roll Call that his critics are “making too much of” his union work.

Lenhard and Vogel deserve to be questioned intensively on their views by the Senate Rules and Administration Committee, not slipped into office by recess appointment. Daschle and Frist should tell the White House to handle these appointments on the up and up.

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