Lenhard Warns of Prolonged FEC Impasse

Posted April 14, 2008 at 6:43pm

Robert Lenhard, the former Federal Election Commission nominee who jumped ship Monday for the private sector, predicts Senate leaders and the White House have less than three months to sort through their differences before scrapping the nominating process — and shutting down the FEC — until after the presidential election.

“There are two windows in which the president and the leadership can reach a resolve on the nominees: One is to get something done prior to [Congress] going out on recess in June … after that it will be sometime in March of the next administration,” Lenhard said. “It’s going to be very hard in a lame-duck Congress in the waning days of November to take the time, energy and effort to sort through the problems of the FEC.”

Lenhard’s candor on the nomination process’s tight timeline came moments after Covington & Burling LLP announced Monday that the former FEC chairman was joining the law firm’s election law practice. Earlier in the day, Senate Majority Leader Harry Reid (D-Nev.) first mentioned Lenhard’s departure in a letter to the White House in which he expressed his frustrations with the “complete unwillingness among Republicans to constitute a functioning FEC.”

Lenhard, a graduate of the UCLA School of Law, worked for the American Federation of State, County and Municipal Employees before arriving at the commission in January 2006.

Lenhard went off the agency’s payroll four months ago, when his temporary recess appointment and those of other commissioners expired. Reid, Minority Leader Mitch McConnell (R-Ky.) and the Bush administration negotiated for months to keep the FEC’s lights on, but could not strike a deal by late last year on Republican pick Hans von Spakovsky, a former Justice Department lawyer who was then caught up in the scandal over the administration’s firing of certain U.S. attorneys.

The impasse put Lenhard and two other commissioners out of work and left the agency two votes short of a quorum necessary to issue fines or guidance, such as whether Sen. John McCain (R-Ariz.) must abide by presidential public financing restrictions.

Michael Toner, a former GOP-picked FEC chairman now in private practice, agreed that Lenhard’s decision to bow out of the nomination imperils the prospects of a functioning commission anytime soon.

Toner put the odds at less than 50 percent.

“It is a very unfortunate development in light of the standoff between the White House and Sen. Reid,” Toner said. “It further diminishes the chances that the FEC is going to have a working quorum this year; in fact, it makes it more likely than not that there will be no working quorum at the FEC until after the presidential election.”

Fred Wertheimer, president of Democracy 21, a political watchdog group, agreed that Lenhard’s recent departure likely escalates the ongoing nominations showdown.

“This is just more evidence of the extraordinary situation that we’re now in as a result of not having a functioning Federal Election Commission,” Wertheimer said. “This has to be resolved, and it has to be resolved soon.”

Buttressing predictions by Toner, Wertheimer and Lenhard, the White House and McConnell’s office on Monday signaled that no new deals were in the works on the still-pending FEC nominations of von Spakovsky, GOP nominee David Mason and Steven Walther, a close friend of Reid’s.

“Obviously, the Senate normally votes on these nominations as a package and we have encouraged them — and continue to — vote on them in a package … we’re continuing to work with the Senate to encourage them to provide a vote,” White House spokeswoman Emily Lawrimore said. “We don’t comment on personnel decisions, but we continue to strongly support [von Spakovsky’s] nomination. He should continue to have an opportunity to serve in this important role.”

Lenhard’s move to private practice Monday also now leaves two commission seats empty and without nominated replacements. For more than a year, Toner’s place on the panel has remained vacant, the subject of little more than frequent nomination rumors involving National Republican Congressional Committee lawyer Don McGahn.

Karl Sandstrom, a former Democratic-named FEC commissioner now in private practice, said Lenhard’s departure is significant because it is the first time in recent memory that so many FEC spots have sat empty — with no end in sight.

In the landmark Buckley v. Valeo case, the Supreme Court struck down the old FEC nomination process, which gave the House, Senate and White House two picks apiece.

While crafting the current FEC nominating process — in which the White House picks all six commission spots subject to Senate confirmation — the high court put all six FEC commissioners out of work for a few months in the mid-1970s.

“That’s the only comparable situation,” Sandstrom said.