The Easter recess has come and gone and the Federal Election Commission is still held hostage by President Bush and Senate Minority Leader Mitch McConnell (R-Ky.).
The two have presented Senators with a Hobson’s choice — either vote for an individual who is wholly unworthy of Senate confirmation after compiling a scandalous record of partisanship, politicization and voter suppression at the Department of Justice, or refuse to let this nomination go through and thus allow the commission charged with enforcing federal campaign laws to be brought to a halt during an election year. By any reasonable person’s standards, it is an unfortunate situation for our nation to be in.
But that is where we are because Bush and McConnell have turned the confirmation of Hans von Spakovsky into a game of chicken. They refused an offer by Senate Majority Leader Harry Reid (D-Nev.) to have an up-or-down vote on von Spakovsky, and instead have insisted that the Senate accept the package of nominees. That’s because they can’t muster the 51 votes needed for von Spakovsky’s confirmation, which is strongly opposed by the civil rights community because of his disgraceful tenure at DOJ.
McConnell appears to enjoy the position he is in at the moment. He gets to insist on approval of a proven party loyalist — on one level just the type that the parties like to have at the FEC to do their bidding, but someone who sinks to another level altogether through his abuses at the Justice Department — while also bringing the FEC, which he has long hated as part of his enmity toward regulation of campaign finance, to a halt. In other words, he is like Brer Rabbit begging not to be thrown in the briar patch.
The truth is that manning the FEC with fewer than the four commissioners needed to act on most matters is for the moment not a grave threat to our nation’s elections. The ministerial work of the agency continues. No remaining presidential candidate is seeking matching funds — which would require at least four commissioners for certification — though there is some controversy about Arizona GOP Sen. John McCain’s ability to withdraw from the system without a vote by a quorum. Further, several requests for official advice from the FEC have gone unanswered because of the commission’s lack of the four votes necessary to issue advisory opinions. Even with a full complement of six commissioners, the FEC rarely commences enforcement actions in an election year.
But this state of affairs could soon become critical and should not be allowed to last any longer. Here’s what should happen next:
First, Senators from both sides of the aisle should convey to Bush and McConnell that continuing to insist on von Spakovsky’s confirmation is a waste of time. They should make clear they are unwilling to confirm an individual who, at the Department of Justice, compiled a record of politicization and voter suppression and who, at the FEC, demonstrated a contempt for the very laws he was supposed to enforce.
Second, Bush should rise above the game of chicken that the American people are so tired of, and allow von Spakovsky, who has publicly admitted he lacks the requisite support in the Senate to be confirmed, to withdraw his name.
Third, the Senate should then move to approve the other nominees awaiting confirmation to the FEC — Republican David Mason and Democrats Steven Walther and Robert Lenhard. The president should then send up another Republican name to the Senate to replace von Spakovsky. That nominee should be someone who can garner bipartisan support so the nomination can move through the Senate quickly.
There are those in Washington who want to spin the story by saying the reform community is glad to see the FEC ground to a halt. That is simply untrue. If the FEC was such a high priority for the White House and the Minority Leader, a replacement for former Chairman (and Republican) Michael Toner would have been named months ago. Toner left the commission to enter a private law practice in March 2007, but no one has even been nominated for his slot.
Yes, the FEC is fatally flawed and should be reshaped along the lines of legislation pending in the current Congress to keep it from continuing to be the handmaiden to the two parties. It is a maddeningly ineffective and weak agency whose sins of omission even outpace its sins of commission. It is frustrating to see laws duly passed by Congress and signed into law by the president undermined by appointees whose loyalties to party and ideology override their fealty to constitutional duty and faithful interpretation of the intent of the law.
But having no functioning FEC is not the right answer and is certainly not tenable in the long run. Rather, it is a temporary state created by politicians who are more interested in power politics and partisan advantage than in assuring faithful execution of the law of the land, no matter how much they may personally disagree with that law.
This political stalemate over the FEC only serves to further the partisan interests of McConnell, and does not serve the public interest in a competent, functioning executive agency. This game the Minority Leader is playing may be a win-win for him in the eyes of the Washington hands who love to track who’s up and who’s down, but there is no doubt it is a lose-lose proposition for the rest of us — not one that we created nor welcomed.
Meredith McGehee is policy director of the Campaign Legal Center. She also heads up McGehee Strategies, a public interest consulting business.