Democrats threaten to block FEC nominees, possibly paralyzing panel

Leading Senate Democrats, including Barack Obama (Ill.) and John Kerry (Mass.), say they will not allow a slate of nominees to the Federal Election Commission (FEC) through the Senate in the days before congressional adjournment, threatening to freeze during a presidential election year the agency tasked with policing campaigns.

If the Senate does not confirm the four-person slate in the next several days, the recess appointments of three commissioners will expire at the end of the year, leaving only two members on the commission in 2008.

{mosads}As a result, the FEC would not be able to certify public funding for presidential candidates such as Sen. John McCain (R-Ariz.) and former Sen. John Edwards (D-N.C.). Nor would it be able to investigate complaints of rule-breaking or issue advice on what tactics cross legal lines.

“It’s a big problem,” said Larry Noble, a campaign finance expert at Skadden Arps who served at the FEC for 23 years. “All decisions must be made by four commissioners. Any actions requiring commissioners’ decision will not go forward. There will be no advisory opinions, no new enforcement cases filed in court, no reason to believe decisions. The commission won’t be able to authorize lawsuits.”

Noble, who served as general counsel at the FEC from 1987 to 2000, suggested an outlaw mentality might prevail on the campaign trail if the oversight agency became paralyzed.

“One question is, Will it turn into the Wild West out there, with people saying there’s no sheriff in town?” he said.

Candidates could not act with complete impunity, however, because once the FEC became fully functional, it would likely review past violations.

Obama and Kerry, as well as Sens. Russ Feingold (D-Wis.) and Sherrod Brown (D-Ohio), have placed holds on the slate because one of the nominees, Hans von Spakovsky, a GOP appointee, has come under fire because of his record while at the voting section of the Department of Justice.

“Based on his record at the FEC and at the Department of Justice before that, Hans von Spakovsky does not deserve Senate confirmation,” said Feingold in a statement Monday. “It is unfortunate that President Bush and Republican Senate leaders are playing chicken with this important agency with the ’08 campaign in full swing. The president should nominate someone who has the respect and support of senators on both sides of the aisle. It is up to him whether the FEC will have enough commissioners to function next year.”

The impasse puts Senate Majority Leader Harry Reid (Nev.) at odds with his colleagues. Reid wants to see the nominees confirmed in part because one of them, Steven Walther, is a longtime friend who represented him in the legal battle following his narrow 1998 reelection. Reid won after a recount gave him a victory by 428 votes.

Obama may be able to enlist the support of other high-profile Democrats in blocking the nominations. Sens. Edward Kennedy (Mass.), Dianne Feinstein (Calif.) and Chris Dodd (Conn.), three influential members of the Democratic Conference, have voiced grave concerns over von Spakovsky.

The controversy over his approval stems from a letter signed by six former members of the Justice Department’s voting section who charged that von Spakovsky undermined the department’s “mandate to protect voting rights.”

By placing holds on the nominee, Obama and his colleagues have essentially threatened to filibuster the package of FEC nominees when it reaches the floor in the next week or two. The question is whether Reid and Senate Minority Leader Mitch McConnell (R-Ky.) could marshal enough support to quash debate, or whether Reid would even try to defeat the opposition of the only black senator on a civil rights issue.

Obama is bolstered by a coalition of civil rights groups including the American Civil Liberties Union, the Leadership Conference on Civil Rights and the Mexican American Legal Defense and Education Fund. Each has weighed in against von Spakovsky.

The Leadership Conference on Civil Rights is contacting senators to urge them to oppose him, said a person allied with the group.

Gerald Hebert, the executive director of the Campaign Legal Center who has played a role in organizing opposition, predicted there would be enough votes to sustain a filibuster.

“We’re coming down to crunch time, there’s no doubt about it,” he said.

 Obama, who has edged ahead of rival Sen. Hillary Rodham Clinton (D-N.Y.) in Iowa polls and may become the Democratic presidential nominee, has called for Bush to find a replacement.

“[Sen.] Obama hopes President Bush listens to his serious concerns about von Spakovsky’s record of undermining voting rights and finally sends Congress a nominee who will promote integrity in our election system,” said spokeswoman Amy Brundage Monday.

But swapping a new nominee for von Spakovsky before the end of the year would be extremely difficult, say election lawyers following the impasse. Any replacement would have to undergo a time-consuming background check, and some senators may demand a public hearing as well.

One FEC official pointed to a 1991 Justice Department memo arguing that the commissioners could continue to serve without pay once their recess appointments expire. But lawyers close to the commission say that would be highly unlikely, given that few in Washington like to work for free.

McConnell has rejected flatly the possibility that the slate could move without von Spakovsky. Confirming a three-person package would leave three Democratic nominees and only one Republican on the commission.

“He wants to keep it bipartisan,” said McConnell’s spokesman, Don Stewart.

Stewart said if Democrats removed their hold “the Senate could move [the nominees] pretty quickly.”

“There’s still a hold on one of them,” he added.

At least four Democratic members of the House delegation from Georgia — John Lewis, Hank Johnson, David Scott and John Barrow — have also protested von Spakovsky’s confirmation.

“Some have said that since von Spakovsky is only one member of a five-member board, what harm can he do?” wrote Lewis, Johnson, and Scott in an op-ed appearing last week in The Hill. “Personally, we would hate to find out. The harm he has already done to the federal elections process in some states will take time, and in some instances, litigation and legislative action, to repair.”