For FEC Nominee, a Cool Reception

Posted June 13, 2007 at 6:44pm

A Federal Election Commission confirmation hearing quickly grew heated on Wednesday as Democrats zeroed in on Republican nominee Hans von Spakovsky, a former Justice Department lawyer whose confirmation hangs in the balance and threatens a once-routine agency appointment process.

“Serious questions have been raised about whether or not you have been respectful of the right of Americans to vote,” Senate Majority Whip Dick Durbin (D-Ill.) told von Spakovsky before an unusually packed FEC confirmation panel.

Of the six-member bipartisan commission, four nominees appeared on Wednesday before the Senate Rules and Administration Committee: Republican nominees von Spakovsky and David Mason, and Democrats Steven Walther and Robert Lenhard. Ellen Weintraub, a Democrat, is currently on the commission until her replacement is named. Michael Toner’s departure in spring 2006 created one Republican vacancy on the commission that the White House has not filled.

But questioning by Durbin and other Democrats focused almost exclusively on von Spakovsky, primarily his tenure as a voting rights lawyer at the Department of Justice, an agency hammered by Democrats in recent months regarding claims of politicization by White House appointees.

In von Spakovsky’s case, critics claim political — not legal — considerations were at the heart of his tinkering with voter identification laws in Georgia and elsewhere. Such laws, many claim, are the modern-day equivalent of poll taxes, which were used in some parts of the United States after the Civil War to disenfranchise black voters.

“You have become a lightning rod to all of the problems that have become inherent in American voting,” said Rules Chairwoman Dianne Feinstein (D-Calif.).

Von Spakovsky claimed during the hearing, however, that he was simply a manager executing the orders of DOJ higher-ups. His bosses, he claimed, were the ones pushing the get-tough approach on allegations of voter fraud and that he simply was the “face that [DOJ employees] saw.”

“[This] is the kind of problem that occurs in any organization. When the president of an organization makes a decision on a matter, he’s not the one that goes down and tells the guys on the assembly line. The president tells the senior vice president, who tells the vice president, who tells the manager. And it’s the manager who goes and delivers the message to the line people,” von Spakovsky said. “When the assistant attorney general made a decision … [he] wasn’t the one who would call and talk to the chiefs, deputy chiefs or the line attorneys on a case; they would tell me what the decision was on a matter. …”

Joseph Rich, a former DOJ lawyer, disputed von Spakovsky’s claims that he was simply following orders. In a letter signed by other DOJ officials this week, Rich claimed von Spakovsky “injected partisan political factors into decision-making” and attempted to intimidate his co-workers.

“He was the point person for undermining the Civil Rights Division’s mandate to protect voting rights,” Rich and others claimed in the letter. “Foremost amongst his actions was his central decision-making role on a matter where he clearly should have recused himself.”

Feinstein called it “very unusual” that so many at the agency questioned his actions.

In addition to much-publicized allegations of aggressive application of voter-identification at DOJ, some FEC watchers and lawmakers suggest that von Spakovsky’s undoing may lie not in his management style, but in penning an anonymous law journal article.

While at the DOJ, von Spakovsky wrote an article under the pseudonym “Publius” that amounted to a criticism of lax voter identification laws, which critics said should have triggered a recusal by von Spakovsky on related legal matters.

An observer, who asked not to be identified, said Democrats may try to use the alleged ethical lapse, not allegations of mischief at the Justice Department, to derail von Spakovsky.

“It’s clear-cut and you can get to bottom of it very quickly,” the source said. “It is something you can sink your teeth into very easily.”

And Durbin’s questioning on Wednesday appeared to suggest Democrats could head down that road. Voicing frustration over von Spakovsky’s memory lapses, Durbin quickly focused on the letter.

“[Y]our memory failed you, but we have seen that that is an affliction that many people in the Department of Justice suffer from,” Durbin said. “But I am concerned about where your memory didn’t fail you, about when you decided to publish this article in a conservative publication in Texas under a pseudonym.”

Von Spakovsky said he pre-cleared the article with an ethics offer.

“I completely followed to the letter the regulations governing this publication. I checked with the ethics officer, the principal deputy in charge of the civil rights division,” he said. “I was told that the specific regulations on this … was that federal employees who work at the Department of Justice do not lose their First Amendment rights when they go to work.”

Rick Hasen, a law professor at Loyola Law School in Los Angeles, said von Spakovsky’s handling of those two matters will make or break his nomination. Unable to recall many details asked by Democrats during the hearing, Feinstein gave von Spakovsky additional time to provide details in writing to the panel.

Depending on his response, Hasen said Democrats then face an issue regarding a long-standing truce for Democrats to give a pass to Republican nominees and vice versa.

“The macro question is whether Democrats want to upset this tacit agreement to just approve each party’s nominees for the sake of making a point about an unrelated controversy,” Hasen said. Then, he said, “What do [Democrats] hang their hat on: his management style or more how he handled this anonymous law review article?”

Should von Spakovsky satisfy Democratic concerns in the coming weeks — or the two parties reach a truce on his nomination — it remains unclear whether a lone lawmaker or coalition will step forward to procedurally block von Spakovsky’s confirmation process.

Presidential candidate Sen. Barack Obama (D-Ill.) suggested in a letter to Feinstein this week that he has concerns about von Spakovsky’s nomination. Following Wednesday’s hearing, an Obama spokesman said the Senator is awaiting additional information to make his decision on how to proceed.

“Mr. von Spakovsky’s role in supporting the Department of Justice’s quixotic efforts to attack voter fraud raises significant questions about his ability to interpret and apply the law in a fair manner,” Obama wrote in his letter to Feinstein. “Unless Mr. von Spakovsky can provide legitimate explanations for his conduct in these matters, I believe that he should not be confirmed to this important position.”