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Line Short for FEC Vacancies

Vacancies for appointed political positions often bring out the masses.

From plum ambassadorships on down, supporters, campaign organizers and fundraisers all appear to ooze out of the woodwork to claim their due. And with the Federal Election Commission’s Michael Toner vacating his Republican spot last week — and Democratic Commissioner Ellen Weintraub soon to follow — it’s not difficult to imagine the lines of party loyalists forming at the agency’s E Street Northwest stoop.

But don’t bet on it.

With veteran election-law experts hunkered down at lucrative Washington, D.C., law practices, dispatched to presidential campaigns or gearing up for soon-to-be churning House and Senate elections, the pool of eligible candidates for both vacancies likely will be small. With Weintraub’s departure at least one month away, some observers say it is much too soon to assess the Democratic field. For the GOP, however, the shortage already is acute.

“The problem is there aren’t a lot of folks in this town that know this area of the law,” said Republican FEC Commissioner Hans von Spakovsky. “And the people that do know this area of the law are the lawyers that work for the big firms in town … they’d have to take a stupendous pay cut.”

Federal law caps salaries at $145,400 for agency commissioners, who serve a six-year term. The median salary for first-year associates at large law firms nationwide was $125,000, according to a recent salary survey by NALP, a Washington, D.C.-based legal association.

Still, sources say that the White House likely is putting its final touch on a short list of Republican hopefuls to replace Toner. Although President Bush’s press office declined to disclose names, sources indicate that the list likely includes two GOP party lawyers, a Commerce Department lawyer and a former staffer for Senate Minority Whip Trent Lott (R-Miss.).

At the top of most Republicans’ lists is Don McGahn, a National Republican Congressional Committee lawyer who also runs McGahn & Associates. McGahn is no stranger to the nominating process and has been mentioned regularly when Republican seats have gone vacant during the past half-decade.

Two years ago, McGahn was rumored to be in running to fill the commission spot now held by von Spakovsky. But according to sources, McGahn’s nomination derailed when then-NRCC Chairman Tom Reynolds (N.Y.) balked at his departure. The fact that McGahn was representing then-Majority Leader Tom Delay (R-Texas) and then-Rep. Bob Ney (R-Ohio), sources say, also played a part in dooming his 2005 nomination.

William McGinley, a former National Republican Senatorial Committee lawyer who now works at Patton Boggs, also is a possible White House pick, sources say. Both McGinley and McGahn declined to comment about whether they have been approached by the White House about the nomination.

According to von Spakovsky, a former Georgia election official who transferred to the FEC from the Justice Department just more than one year ago, said the White House also could pad its list with Congressional staffers, previous administration appointments or lawyers who specialize in state and local campaign finance law outside of Washington.

“Somebody from the state-party level that’s had experience with the new [Bipartisan Campaign Reform Act] rules for state campaigns” is a logical candidate, von Spakovsky said.

One such candidate, sources say, is Craig Burkhardt, a Commerce Department lawyer and former election law lawyer with 20 years of private practice experience in the Midwest. Burkhardt also was a party lawyer in the Illinois House and for the state’s Republican Party.

Another possibility is Ken Jones, former head lawyer for the Senate Rules Committee under Lott. He works for Communications Equity Associates Worldwide, an investment bank in Florida.

However unlikely, some observers also claim that the White House may be forced to look beyond the legal bar to fill vacant seats on the six-person bipartisan panel. Many previous commissioners have not had formal legal training and some suggest Bush may have no choice but to pick a non-lawyer.

David Mason, the agency’s current Republican vice chairman, does not have a law degree, but has served on the commission since 1998. Mason, the current commission’s only non-lawyer, was a veteran Hill staffer who also had run for public office before being nominated by President Bill Clinton in 1998.

Many sources say Mason’s unique background and nearly a decade on the commission work more than make up for his lack of a legal degree. But with the complicated legal landscape brought on by BCRA, few suggest that such a nomination could be made today.

“The law today is vastly more complex than [campaign finance] laws that were passed in the 1970s,” von Spakovsky said. “Normally, for someone who is not a lawyer to come in here and interpret the law and interpret the regulations without a legal degree is very difficult. I’m sure there are people who can do it, but finding someone like that is going to be very hard.”

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