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Out of Commission

An ongoing Senate deadlock over FEC nominees could mean the federal government's electoral referee is sidelined during the 2008 elections.

| Mon Apr. 21, 2008 3:00 AM EDT

It's one of Washington's open secrets: Neither political party has much love for the Federal Election Commission. The commission currently lacks the quorum that allows it to decide even the most mundane electoral issues, and Congress doesn't seem in a hurry to end its seven-month long deadlock over the appointment of four FEC nominees. If Congress doesn't act soon to end the stalemate, the 2008 elections, which are bound to get ugly in their final months, could go virtually unregulated for the first time since the FEC was founded more than 30 years ago.

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When operating at capacity, the FEC has six commissioners, three from each party, who serve six-year terms. For the commission to take action on most matters, four commissioners must agree. Currently, the FEC has only two commissioners, Republican chairman David Mason and Democratic vice chairman Ellen Weintraub, so no significant action can be taken. Democrats and Republicans have not been able to agree on how to fill the four open slots. At the heart of the Senate impasse is one of the two Republican nominees, a former Justice Department lawyer named Hans von Spakovsky. The Democrats consider him a deal breaker and view him as one of the leading forces in the Republican Party's efforts to use the seemingly nonexistent specter of voter fraud as a means to disenfranchise minority—and largely Democratic—voters. The Democrats have been unwilling to vote for a group of nominees that includes von Spakovsky—and the Republicans have refused to withdraw his nomination.

Senate majority leader Harry Reid (D-Nev.) has offered the Republicans a simple majority vote on each nominee, a move minority leader Mitch McConnell (R-Ky.) has rejected because it will almost certainly result in the rejection of von Spakovsky. "That's an unacceptable outcome," says Don Stewart, McConnell's communications director. Stewart says that the Republican leadership has also been offered a deal in which one Democrat and one Republican (sitting FEC chairman Mason) would move forward, leaving von Spakovsky behind. "Then you've got a two-to-one ratio and you still don't have [the four votes needed for] a quorum," says Stewart. The delay in holding a confirmation vote has already caused one nominee, Democrat Robert Lenhard, to drop out of the nomination process. Even so, McConnell's position, as stated by Stewart, remains a simple one: "All three move, or they don't move at all. In fact, that's more important now because that's the only way to get a quorum."

According to Jim Manley, Reid's spokesman, that's not going to happen. "The next step is for the White House to withdraw his nomination," he says of von Spakovsky. Stewart's response: "Why should the Republicans have to choose a different nominee just because the Democrats don't like him?"

Both Stewart and Manley insist that their bosses desire a fully functioning FEC, and that the other party is the impediment. Both also acknowledge there is little room for progress on the horizon.

Good government groups working for campaign-finance reform believe the delay isn't an accident. "You're basically expecting the regulated to have an affection for the agency responsible for the regulating," says Paul Ryan, FEC program director at the Campaign Legal Center.

"They wouldn't say this publicly," adds Ryan's colleague Meredith McGehee, policy director at the CLC, "but I don't think a lot of members [of Congress] are losing a lot of sleep" over the FEC's situation. "One of the big roles of the FEC is to police congressional races, so many incumbents are not big fans of the FEC. [They're saying,] 'Hey, if I don't have anybody looking over my back, what do I care?'"

McGehee puts a larger share of the blame for the deadlock on McConnell's shoulders, pointing out that he has long opposed campaign-finance regulations. She doesn't let the backbenchers of both parties off the hook, either. "If you look at the rank and file of Congress, they don't feel a sense of urgency about the FEC because to them the FEC is just a pain." The downside, McGehee says, is that "there's not really anyone standing up for the public's interests."

Robert Lenhard, who served as the FEC's chairman until December, when his two-year recess appointment ran out, withdrew his name from contention last week citing a need to move on. He says the FEC is "an agency that regulates politics in a political town," a fact that naturally makes it unpopular. "This is an agency that suffers two enormous disabilities," he says. "The first is that this is an agency without a constituency group. There is no one other than the American people in some sort of broad and abstract sense whose self-interest is advanced by the existence of the FEC. There is no group that comes forward and says, 'No, no, no. This agency's work is essential and must continue.'"

"The second is that it regulates politicians," he continues. "Everyone on the Hill has some interest in how things run over there. And so the mixture of everyone being somewhat interested in it and no one really defending it make it a very tough road for this agency to hoe."

Even when the FEC functions at full strength, good government groups aren't terribly impressed with its performance. The fact that nominees are often party loyalists means that the commission rarely makes a move that upsets party headquarters, these groups say. And when an issue comes before the commission that could greatly help one party at the expense of the other, gridlock kicks in.

Ed Davis, the research director of Common Cause, a lobbying group that advocates for government accountability, doesn't think that's going to change. "[Congress doesn't] want it to be a strong enforcement agency, so typically they send up nominees who are going to protect them and protect the parties' interests." He adds, "It's been a weak enforcement agency for a very long time."

Lenhard defends the commission. "This sense that the agency is at the beck and call of politicians—it really wasn't borne out by the experiences I had there," he says. "I think that there is no doubt that the good government groups want a more aggressive, prosecutorial agency. But what [they're] missing often is that there is a very deep philosophical divide on how active a role the federal government should play in policing elections."

And that divide isn't just among politicians, he argues. "My sense is that if the agency were to be dramatically more effective and were to intervene in elections, and get court orders to get candidates to take ads off the air, to raid offices and conduct audits in the midst of elections, and were to play a prosecutorial role that is more similar to traditional law enforcement, that people would be very uncomfortable with the federal government being that aggressive."

Lenhard also points out that the commission operates with relatively scarce resources. "The thing people need to understand about this agency is that this is among the smallest federal agencies. It has 375 employees and about a $60 million a year budget to regulate a $4 billion industry, for lack of a better term," he says. "The federal government spends more money at the Department of Labor regulating union elections than is spent at the FEC regulating all federal elections."

So what happens going forward? "We don't know, to be honest," says Davis of Common Cause. "We and the other groups continue to hold the position that Hans von Spakovsky is an exceptionally bad nominee for the agency. At the same time, campaign finance is a key issue for us, and we're concerned that the FEC is not functioning. It doesn't function at a level we'd like it to anyway, but to be out of commission in a presidential election year is outrageous." In essence, he says, the nation could be headed into an election year with effectively no oversight of campaign fundraising or spending.

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