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The Phantom Commission

Agency Formed to Restore Confidence in Elections Is in Disarray

A federal agency created to restore confidence in the election process in the wake of Bush v. Gore sits all but leaderless as the country approaches Election Day.

As local election officials scramble to sort out last-minute issues — Palm Beach County, Fla., for example, recently hired dozens of workers to hand copy about 27,000 misprinted absentee ballots — the U.S. Election Assistance Commission operates, on its 10th anniversary, as a shell of what Congress designed it to be.

Its four commissioner spots are vacant. The executive director resigned last year. Its general counsel left in May. It has lacked a quorum to conduct official business for almost two years. Congressional gamesmanship has hamstrung the commission by neither giving it necessary resources nor eliminating it outright.

“It’s a national embarrassment that this agency, whose only mission is to provide information, doesn’t have a single commissioner,” said Rick Hasen, an election law expert at the University of California, Irvine.

Congress created the commission as part of a larger effort to support state-
level election procedures in the aftermath of the contested 2000 presidential election and the subsequent Supreme Court decision in Bush v. Gore. President George W. Bush signed the Help America Vote Act into law in October 2002, just days after it passed the House and Senate with broad bipartisan support.

The EAC has two Democratic  commissioners and two Republican commissioners who are recommended by Congressional leaders, nominated by the White House and confirmed by the Senate. It was given more than $3 billion to dole out to states for improved election administration. Other responsibilities include acting as a repository of effective election processes, developing voluntary voting-system guidelines, setting up procedures to certify the laboratories that test voting equipment and ensuring that states are upgrading their technology.

The original commissioners say they took the agency’s bipartisan mission seriously. Former Republican Commissioner Paul DeGregorio recalls meeting with Democratic Commissioner Gracia Hillman at a Washington, D.C., Starbucks before they were confirmed. The pair said they didn’t want the agency to resemble the Federal Election Commission, which has become emblematic of Washington gridlock.

“The four of us had that in the back of our minds, the partisan bickering and the 3-to-3 votes on the FEC,” DeGregorio said in a recent interview.

 “We knew that we were there representing our party affiliation, but we wanted to work in a bipartisan way,” Hillman said.

The commissioners’ desire to achieve consensus was not as popular outside the agency, even with some designees on its advisory boards. During DeGregorio’s final year on the commission, those familiar with the agency’s work said he was getting “unnecessary grief” for not being “Republican enough.”

A movement started to ensure that DeGregorio would not be re-nominated and instead be replaced by a more partisan commissioner. The “ringleader,” according to multiple sources, was Hans von Spakovsky, a legal fellow at the conservative Heritage Foundation who was then a Justice Department attorney who sat on one of the commission’s boards. Von Spakovsky called the charges “silly back street stories that have been repeated for years.”

“Nobody at the White House would even have thought to call me to ask who should be a commissioner on the EAC,” von Spakovsky said in an interview.

Election law experts and EAC observers point to DeGregorio’s departure in February 2007 as a turning point. A Republican National Committee attorney was appointed to take his place. The subsequent release of two reports on voter fraud and voter identification raised questions about partisan influences. The agency’s new leadership disagreed on the basics of what its mission should be, or whether it should even exist. The U.S. Office of Special Counsel settled with a job applicant who charged that the agency’s commissioners refused to hire a Republican general counsel.

When Hillman left in December 2010, there was already an open Democratic position. The agency hasn’t had a quorum of three commissioners since.

Rep. Gregg Harper (R-Miss.) introduced legislation to eliminate the commission in February 2011, following a broader effort to cut ineffective federal programs. Harper said it makes economic sense given that most of the Help America Vote Act funds have already been distributed, the commission’s highest cost is its personnel and the agency has a history of hiring misconduct. “Its time has come and gone,” Harper told Roll Call.

The commission’s “essential functions” can be streamlined and transferred to the FEC, he said. The House passed the bill last December over the objections of Democrats who said the EAC should be overhauled, not eliminated. That same month, when the measure arrived in the Senate, Majority Leader Harry Reid (Nev.) declared it dead. The agency’s remaining Republican commissioners left shortly after. Republican leadership has not recommended any nominees to the White House, a tactical move that ensures the vacancies remain because Democratic and Republican openings must be filled in tandem.

The last time the Senate Rules and Administration Committee addressed the commission’s stalled Democratic nominees directly was in a June 2011 hearing, when ranking member Lamar
Alexander (R-Tenn.) said it was “premature” to discuss new commissioners when they should be “abolishing this commission.” Chairman Charles Schumer (D-N.Y.) said the committee would examine the larger issue without promising to hold an oversight hearing.

Schumer spokesman Brian Fallon told Roll Call that they are “hopeful to receive bipartisan cooperation on fully staffing the agency soon after Congress returns.” An Alexander aide said the Senator has not “heard anything from Chairman Schumer about a hearing” and has not changed his position on the EAC’s future.

Reid spokesman Adam Jentleson said that “during a close election year, it is regrettable that Republicans have worked to cripple the EAC” by attempting to cut its funding and refusing to recommend commissioners. Minority Leader Mitch McConnell’s (R-Ky.) office said he doesn’t comment on pending nominees.

Drew Hammill, a spokesman for House Minority Leader Nancy Pelosi (Calif.), said that Republicans should “stop obstructing” the commission’s work. Speaker John Boehner’s (R-Ohio) office did not respond to requests for comment.

“I don’t understand it. If I didn’t believe in the commission and I thought for whatever reasons it shouldn’t exist, I still have a responsibility to appoint someone who is going to exercise mature judgment and make the place work,” said Rep. Charlie Gonzalez (D-Texas), ranking member of the House Administration Subcommittee on Elections. Gonzalez led a failed effort to study the EAC’s functions before making any decisions about its future.

Congressional leadership’s failure to reach consensus on the commission has tangible consequences. Mark Robbins, the commission’s most recent general counsel, said it’s frustrating for remaining employees to work “without the necessary tools or even a blueprint.” Even worse, Robbins said, is that Congress instructed the commission to study specific issues and has yet to receive the findings.

“The policy shop was finishing up some of the studies that had been mandated by Congress, but staff has no one to present them to for adoption so they’re just sort of sitting on a shelf,” he said. “There are philosophical and budgetary reasons on both sides of the argument, but Congress really needs to focus on it and do one of those things instead of ignoring it and letting it whither away.”

The EAC continues to host roundtables and will once again compile a national report based on state-level data after the elections. But if the agency had leadership, it could play a larger role providing advice on “non-sexy” issues such as ballot design and proof-reading procedures, which could have prevented the situation  in Palm Beach County, Hasen said.

Former Democratic Commissioner Ray Martinez, who now works for the Texas state Senate, said now that the Help America Vote Act funds have largely been distributed, it’s a good time to examine the commission’s future. But he doesn’t see that happening in Congress.

“In Texas we put our agencies up for sunset review every 10 to 12 years, and I think that’s a useful exercise,” Martinez said. “But what’s appropriate is for folks to come together and for Capitol Hill to have a sincere dialogue and not just retreat into partisan corners.”

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