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FEC Nomination Deadlock Persists

A quartet of Senate Democrats continues to stonewall a controversial Republican Federal Elections Commission nominee, setting the stage for a potential shutdown of the elections agency in the days before the presidential nomination process begins in Iowa.

Since talks broke down early last month on a plan to salvage three commission nominations, Sens. Barack Obama (Ill.), Russ Feingold (Wis.), John Kerry (Mass.) and Sherrod Brown (Ohio) have placed holds on the nomination of GOP-appointed Hans von Spakovsky, a former Justice Department official who has been accused of pushing controversial voting and election-related policies while working under White House operative Bradley Schlozman.

Because von Spakovsky and two Democratic nominees are recess appointments to the FEC, they would be forced to leave their posts at the end of the year if the Senate fails to act, robbing the commission of a quorum for upcoming meetings.

An administration official suggested on Friday that the holds were no more than a political stunt, saying that “the players are obvious” — a jab perhaps at Obama, who is running for president and is busy establishing his credibility with the liberal base of his party.

In response to Democrats’ opposition to von Spakovsky, Senate Minority Leader Mitch McConnell (R-Ky.) has promised to oppose the Democratic nominees Steven Walther, Senate Majority Leader Harry Reid’s (D-Nev.) former lawyer, and Robert Lenhard, a former union lawyer.

McConnell first indicated he was backing von Spakovsky’s nomination at a tense Senate Rules and Administration Committee hearing in late September.

“There obviously, from time to time, have been nominees on both sides that were, shall I say, not enthusiastically embraced by the other side,” McConnell said at the hearing. “The Federal Election Commission was set up on purpose to be a 3-3 agency, so that neither political party would yield to the temptation to try and take advantage of the other.”

Von Spakovsky, Lenhard and Walther all are serving White House recess appointments that expire when this year’s session gavels to a close in late December. Their departure would leave only Democratic-nominated Commissioner Ellen Weintraub and David Mason, a Republican, standing on the six-member panel — two shy of a quorum necessary to conduct agency business.

A Senate leadership aide confirmed Friday that Republicans and Democrats remain deadlocked on the FEC picks. White House spokeswoman Emily Lawrimore declined to discuss the ongoing stalemate but urged lawmakers to avoid an agency shutdown.

“We continue to call on the Senate to confirm them as soon as possible,” Lawrimore said. “It’s obviously very disappointing that some people are more focused on politics than making sure that the FEC has the right leadership in place.”

The Senate Parliamentarian was unavailable before press time, but various scenarios currently are circulating that suggest a shutdown may be avoided; first and foremost: Von Spakovsky could withdraw his name from consideration, freeing up the retaliatory GOP holds on Walther’s and Lenhard’s nominations and leaving the panel just one commissioner short.

But short of von Spakovsky stepping aside, lawmakers and White House officials will need to take out their slide rules to sort through a complicated political calculus likely involving a new round of recess appointments. Lawrimore declined to discuss pending personnel matters, but Cyndi Bauerly, a lawyer for Democratic Senatorial Campaign Committee Chairman Charles Schumer (N.Y.), is expected to be named soon as Weintraub’s replacement. Also, Don McGahn, a National Republican Congressional Committee lawyer, likely will replace Michael Toner, whose former commission spot remains vacant.

Toner, Bush’s former campaign lawyer, left the commission last spring to go into private practice.

But combined with Mason, a former aide to retiring Sen. Trent Lott (R-Miss.) and the only commissioner who is not subject to term limits, presumed recess appointments for McGahn and Bauerly still would leave the FEC one commissioner short of the votes necessary to conduct agency business.

Other options White House officials and Senate leaders may be considering include proposing five fresh-faced nominees or exploring whether the deck of current commission recess appointees may be reshuffled and re-recess appointed, a complicated and likely unprecedented strategy.

The White House declined to discuss ongoing considerations on the matter.

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