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With No FEC Deal, Pro Forma on Tap

The Federal Election Commission will remain dormant for at least a few more weeks after private negotiations between the White House and Democratic Senate leaders devolved into a political standoff Wednesday.

According to sources familiar with the discussions, Senate Majority Leader Harry Reid (D-Nev.) and the Bush administration could not agree to a deal before Memorial Day that would impanel five nominees to the FEC, as well as numerous other appointees to executive branch agencies, commissions and boards. The breakdown means the FEC might sit idle for several more weeks, if not months, becoming a major problem for candidates in a presidential election year.

The stalemate over those appointments also means Reid will keep the Senate in a series of pro forma sessions over the upcoming recess to prevent President Bush from sidestepping Senate confirmation and appointing nominees while Senators are out of town next week.

Reid spokesman Jim Manley said the Majority Leader refused to agree to confirm any other White House nominees by Memorial Day unless the FEC goes first, saying it must be the priority.

Manley said Reid “wants a fully functioning FEC” and isn’t interested in advancing scores of Republican nominees for other boards and commissions before then.

But White House officials counter that the Democrats are insisting on seating the FEC on their terms by dictating the Republicans’ replacement for Hans von Spakovsky, the controversial former Justice Department lawyer who served as a recess appointee on the FEC but recently withdrew his candidacy for a longer appointment.

Reid wanted Republicans to renominate outgoing FEC Commissioner David Mason — a nonstarter for the Bush administration since Mason has been known to side with the FEC’s Democratic members.

One senior administration official said that if the White House had agreed to Reid’s proposal, it would amount to an “imbalance on the FEC.” Mason, plus the Democrats’ three picks, would essentially give Democrats a working majority on the commission, the official said.

“Basically, they told us they will move no noms unless we agree to that 3-to-2 ratio,” the official said.

Plus, the White House said it already extended an olive branch on the FEC stalemate earlier this week when von Spakovsky withdrew his nomination. Von Spakovsky’s selection was fiercely opposed by Democrats and had been stalled in the Senate.

On Monday, the White House asked Reid to consider approving three pages of largely benign executive nominees whose terms would all expire at the end of Bush’s term — as part of a pre-recess package.

In exchange, Bush would hold off on making any “recess appointments” while Senators are away for the weeklong break.

Reid then came back with his FEC proposal, in which the Majority Leader offered to renominate Mason (who was nominated by Bush), confirm two of the GOP’s new selections, Don McGahn and Caroline Hunter, and confirm two of the Democratic selections, Cynthia Bauerly and Steven Walther. On Wednesday, McGahn, Hunter and Bauerly went before the Senate Rules and Administration Committee.

Only one current FEC commissioner, Democrat Ellen Weintraub, remains in place. Walther is a holdover nominee.

Earlier in the day, Senate Rules Chairwoman Dianne Feinstein (D-Calif.) said after the hearing that she hoped Republicans “will agree to get at least these three done.” Feinstein also committed to holding a hearing on Mason’s replacement “within a week” after the White House offers up a name — a process her office predicted would take a month or more to complete.

Feinstein also said Wednesday afternoon that she would prefer to see the three new nominees seated now at the commission — and deal with von Spakovsky’s replacement midsummer.

“They should be voted on and get on the commission just as soon as possible. Then the commission will function,” Feinstein said. “And I’ll make the commitment to process [von Spakovsky’s replacement] rapidly.”

Asked about the state of the nominations talks, White House spokeswoman Emily Lawrimore said: “We’ve proposed a reasonable nominations package that would allow numerous Republican and Democrat nominees to be confirmed by the Senate.

“We are hopeful that the Senate will choose this offer over more political gamesmanship that does not serve our country well.”

But Manley said it was ridiculous for Democrats to accept the White House proposal because it failed to include any Democratic picks. Reid has been hoping to win confirmation of a series of his nominees for a number of executive posts, including his one-time chief of staff Susan McCue to the Broadcasting Board of Governors, but that has met Republican resistance.

Manley said the Bush administration is playing games, not Democrats.

“The fact is we could have been done with the FEC situation months ago if Senate Republicans and the White House had been willing to negotiate in good faith,” Manley said. “They need to deal with the fact that von Spakovsky was never going to be confirmed.”

The latest standoff between Senate Democrats and the administration over executive branch nominations makes it increasingly likely that few federal vacancies will end up being filled later in the Congress. Democrats are banking on winning the White House in November, a victory that would give them the authority to fill openings throughout the executive branch.

Reid has said he won’t install any more Bush appointees whose terms expire after his presidency ends next January.

On a more practical note, the Senate will once again be forced to keep the lights on during the Memorial Day recess next week. Reid has made a regular practice of keeping the Senate operating in a series of nonvoting, pro forma sessions during the breaks to stave off recess appointments.

Reid has said he learned his lesson a year ago when Bush used the April 2007 recess to put several controversial nominees in place, including Republican donor Sam Fox as the ambassador to Belgium.

Since then, while the Democrats and White House have negotiated nomination deals, they have rarely been strong enough for Reid to gavel the chamber out entirely.

Matthew Murray contributed to this report.

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