Expired Terms Loom Over FEC

Posted July 26, 2005 at 6:50pm

With the August break fast approaching, campaign reform advocates are actively worrying about the possibility that Senate leaders and the president will use the recess as a way to bypass the confirmation process and sweep in a crop of new appointees to the Federal Election Commission.

In order for recess appointments to occur, President Bush would have to submit nominees before Congress goes out of session Friday and then use his constitutional prerogative to appoint those he has named while Congress is out of session. Recess appointees can serve until the beginning of the following Congress, in this case January 2007. In the meantime, the FEC is poised to tackle some of the most pivotal issues it has dealt with in years, including critical rulemaking decisions affecting central aspects of the Bipartisan Campaign Reform Act. On its agenda for later this summer is a decision on whether campaign spending on the Internet is subject to the same restrictions put on broadcast and other ads.

Sen. John McCain (R-Ariz.), one of the sponsors of the 2002 law, said he is “very concerned” about the possibility of recess appointments. “I don’t think it is right or appropriate and the wrong people would be the ones who were appointed,” McCain said.

McCain was likely alluding to a handful of names that have circulated recently as potential nominees.

Senate Minority Leader Harry Reid (R-Nev.) has indicated his intention to submit Steven Walther, a Reno lawyer who has represented Reid, and labor attorney Robert Lenhard. Lenhard, who was chosen in 2003 by House Minority Leader Nancy Pelosi (D-Calif.) and then-Senate Minority Leader Tom Daschle (D-S.D.), is associate counsel for the American Federation of State, County and Municipal Employees. Lenhard has been outspoken about his opposition to BCRA and helped challenge the constitutionality of the law before the Supreme Court two years ago.

Senate Majority Leader Bill Frist (R-Tenn.) has not made his intentions known.

“We haven’t made any recommendations yet, but we may do so in the future,” said Amy Call, Frist’s spokeswoman.

Talk in campaign finance circles, however, is that the Republicans may renominate Commissioner David Mason (R).

GOP Commissioner Brad Smith, whose upcoming departure set off the recent scramble to fill a total of four expired FEC posts, would likely be replaced with Don McGahn or Craig Burkhardt. McGahn currently serves as general counsel for the National Republican Congressional Committee. Burkhardt is the chief counsel for technology at the Commerce Department and previously served as general counsel to the Illinois Republican Party and has represented Speaker Dennis Hastert (R-Ill.) in past legal matters.

Traditionally, Democratic and Republican picks for FEC slots are “paired” in order to minimize party bickering about the selections to the six-member agency. Even then the process is an extraordinarily delicate one, and Congress has managed to avoid the issue for two years, despite that fact that four of the six commissioners now serving on expired terms (The law allows them to remain on until a successor is named). Smith’s announcement that he would leave his post in August essentially forced House and Senate leaders’ hands.

Senate Rules and Administration Chairman Trent Lott (R-Miss.), whose committee oversees the FEC, said he doesn’t “think anybody is served well” by recess appointments, adding “we need a full, confirmed commission.”

Nonetheless, Lott said, he has supported recess appointments in he past “provided both sides are consulted.”

Lott did not support BCRA and has been skeptical of campaign-finance reform efforts in the past, although he introduced a bill with Sens. Russ Feingold (D-Wis.) and McCain this year to regulate so-called 527 groups. The independent, soft-money organizations spent a half billion dollars last cycle to influence federal elections outside the purview of the FEC. McCain, Feingold, Lott and others blame the FEC itself for this, saying they had the authority under 30-year old laws to regulate political groups attempting to influence federal elections. This opinion is far from universally held, however, as the House Democratic leadership, in addition to some mostly-GOP BCRA opponents, have maintained that Congress never gave the FEC such authority.

Recess appointments for FEC slots are hardly unprecedented. Of the dozen commissioners who have served in the past decade, four received a recess appointment at one time or another, meaning they were either originally appointed that way or a recess appointment was used to extend their tenures. Three of the current six commissioners were appointed by the president during recess.

The FEC is in the midst of determining whether to rewrite regulations to enforce that law after a federal appeals court upheld a lower court’s determination that many of those rulemakings either perverted the law or were inadequately justified by the commission. The FEC is also mulling whether to appeal the ruling to the entire U.S. Court of Appeals for the D.C. Circuit or to the Supreme Court.

Addressing the persistent rumors that Bush plans to soon announce three or four new appointments to the six-member agency, Democracy 21 President Fred Wertheimer used the strongest possible terms to criticize Congress and Bush for what he believes is a potential effort to pack the commission with those who oppose BCRA. Democracy 21 supports efforts to further regulate financing of federal elections.

Reid, Wertheimer said, is “engaged in a scandalous effort to throw Democrat Scott Thomas off the Federal Election Commission, the only Commissioner who has consistently supported the proper implementation and enforcement of the nation’s campaign finance laws.”

Feingold said Tuesday that he planned to talk to Reid about keeping Thomas on the commission, possibly instead of Walther.

Regarding Walther, Wertheimer said his “basic qualification for the job appears to be that he served as an attorney for Reid.”

A spokesman for Reid said it’s the Minority Leader’s “responsibility to choose a nominee for these two seats. He is engaging in an extensive vetting process,” adding that Walther and Lenhard both “have impeccable legal credentials.”

Wertheimer also accused the Nevada Senator of going back on his support for the 2002 law and those that it preceded it. Reid voted for BCRA.

“These four Commissioners are being chosen by Democratic and Republican Congressional leaders with the clear mandate to protect the interests of the leaders and their Congressional colleagues,” Wertheimer said. “If President Bush proceeds with these four appointments to the FEC, he will make the FEC a complete captive of the Congressional incumbents the agency is supposed to regulate, and the President will give the back of his hand to the interests of the American people in honest elections and government decision.”

To that, GOP election lawyer Cleta Mitchell responded: “The campaign reform industry opposes anyone who doesn’t kowtow to them.

“They expect the FEC to immediately do whatever they say, interpret the law however they want it interpreted and if there is any disagreement or alternative view or approach, they run to the media and scream, ‘corrupt, corrupt, corrupt.’” Mitchell, who works for Foley and Lardner LLP, serves as outside counsel to the National Republican Senatorial Committee.

In an effort to gain the president’s ear on the subject, the sponsors of BCRA — including McCain and Feingold as well as Reps. Christopher Shays (R-Conn.) and Marty Meehan (D-Mass.) — sent Bush a letter last week asking him to “nominate commissioners who are serious about their duty to enforce campaign finance laws and who will properly implement BCRA, whatever their personal views on the law.”

The four reminded Bush of his own campaign’s failed petition in 2004 to get the FEC to regulate 527 groups, pointing out the “extraordinary opportunity” now available to him to reinforce the law Congress passed in 2002 and he signed.