Held up for 15 months, withdrawn FEC nominee laments ‘broken’ process

The confirmation process is a “broken system,” according to
a prominent labor lawyer whose nomination to the Federal Election Commission
(FEC) was blocked.

John J. Sullivan, associate general counsel for the Service
Employees International Union (SEIU), had been nominated more than 15 months
before he asked the White House to withdraw his nomination in August.

{mosads}In an exclusive interview with the Center for Public Integrity, Sullivan said the decision to end
the quest for confirmation was entirely his, the result of a marathon process
that began when the administration offered him the position a month after
President Obama’s inauguration.

Eighteen months later, with no confirmation vote in sight,
Sullivan says he realized “it didn’t seem likely the impasse was going to be
resolved, and a confirmation didn’t seem in the offing in the foreseeable
future.”

The frustrating experience left Sullivan feeling there are
serious flaws with the Senate’s confirmation process.

Even if cloture is invoked with approval of at least 60
senators, Senate rules provide for 30 more hours of floor debate – precious
time, especially given a full Senate docket that included healthcare, financial
services, the budget and two Supreme Court confirmations.

“The problem with cloture,” he says, “is not the vote, but
the amount of floor time it takes in the Senate.”

Sullivan says “it is an incredible distraction to occupy the
Senate with a nomination like mine with so many other pressing matters on the
floor.”

“I think the dangers of abuse of the filibuster process are
most evident in appointments,” he says. He notes that some other Obama nominees
have suffered far worse “abuse” at the hands of the Senate than he did.

Of his confirmation, Sullivan said, “It wasn’t something I
thought I was entitled to or campaigned for with the administration. If I had
to go through it again, I’d probably do the same thing.”

During his year and a half as an almost-FEC commissioner,
Sullivan says, he drew inspiration from a John Milton quote: “They also serve
who only stand and wait.”

“As a nominee bottled up in the Senate,” he says, “I think
that was particularly appropriate.”

Sullivan’s nomination was held up after he sailed through a
Senate Rules Committee hearing in June 2009 with unanimous bipartisan support
by the Senate’s two most prominent campaign finance reform crusaders.

One month after the Rules Committee endorsement, Democrat
Russ Feingold of Wisconsin and Republican John McCain of Arizona placed a hold
on Sullivan’s nomination, serving notice that they would filibuster his
confirmation. Two additional FEC commissioners’ terms were up — one a
Democratic seat, one a Republican slot — and the duo demanded Obama nominate
replacements to fill those seats before they would permit a vote on Sullivan.

In a joint statement, the senators said, “The FEC is
currently mired in anti-enforcement gridlock; the president must nominate new
commissioners with a demonstrated commitment to the existence and enforcement
of the campaign finance laws.”

Why hasn’t Obama done so?

Traditionally, nominees to the FEC are presented as a pair,
replacing one Democratic and one Republican commissioner whose terms have
expired. The White House almost always defers to the other party’s Senate
leader to select his party’s nominee. But, as Sullivan explains, there was
little movement by Senate Minority Leader Mitch McConnell (R-Ky.) toward giving
President Obama a name to replace Commissioner Donald McGahn. Rather than
breaking with that tradition and risking a major fight with the Senate GOP,
Obama has refrained from nominating replacements for either.

And without more nominees, McCain and Feingold continued to
block Sullivan’s confirmation. The commission has continued to operate with six
members, however, because commissioners whose terms have expired may continue
to serve until replacements are in place.

Sullivan believes he would have received more than 60 votes
— the magic number required to end a Senate filibuster — even with the
objections from McCain and Feingold, given the bipartisan praise he received at
his Senate confirmation hearing. But no cloture vote was ever scheduled.

“No one ever expressed any opposition to my background, my
qualifications or any of the things that I believed,” Sullivan says.

Multiple calls and e-mails to the offices of Feingold and
McCain were not returned. The White House and McConnell likewise did not
respond to requests for comment.

Sullivan appealed twice to Feingold, hoping to convince him
to drop his objections. “I tried to convince him I was a nominee whose views
[including support for the Disclose Act] he’d be comfortable with. That didn’t
seem to move him.”

With no additional commission nominations from the White
House on the horizon, Feingold and McCain unwilling to bend and a checkered
history for recess appointees to the FEC, Sullivan saw the writing on the wall.

There seemed to be “no way to resolve that impasse,” he
says. “When that became obvious to me, I made my decision.” Now Sullivan, who
moved away from campaign finance law in his post at SEIU, can return to a
professional life that was in limbo for a year and a half.

Josh Israel and Aaron Mehta are staff writers at the Center
for Public Integrity.