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Legacy Content / RULES OF THE GAME

The Endless FEC Fight

June 16, 2008

The prolonged Senate standoff that has kept the Federal Election Commission dysfunctional since January may finally be drawing to a close. But for the five nominees poised to step in as FEC commissioners, the battle is just beginning.

A Senate vote to approve pending FEC nominees may come as early as this week. That would restore the agency to its full complement of six commissioners and allow it to reopen for business. The agency has been limping along with only two commissioners, too few for a quorum, since the beginning of this year, due to a bitter Senate dispute over who should run the FEC.

In the meantime, election law complaints, advisory opinion requests and legal disputes have been stacking up, creating a massive agency backlog for incoming commissioners. Digging out from under this backlog will pose a huge challenge for the reconstituted FEC, experts say. The agency must also settle several pressing, high-profile questions involving the 2008 presidential campaign.


Front and center will be whether John McCain should have sought the FEC’s approval before dropping out of the public financing system in the primary. (The FEC lacked a quorum at the time.) McCain’s lawyers argue strongly that he acted legally. But the Democratic National Committee has filed both an FEC complaint and a federal lawsuit charging that McCain violated the election laws.

Also at issue will be questions over how Hilary Rodham Clinton may retire her more than $30 million in campaign debts now that she’s lost the Democratic nomination.

There’s been some speculation, for example, that Clinton might ask some of her presidential donors to redirect that money into her senatorial campaign coffers. Another erstwhile Democratic presidential candidate, Sen. Christopher Dodd, D-Conn., has already asked the FEC for permission to do just that. Dodd’s advisory opinion request bears directly on the questions facing Clinton.

The FEC must also write regulations to implement new bundling rules in the Honest Leadership and Open Government Act of 2007. That law requires lobbyists to report to the FEC the donations that they “bundle,” or round up, on behalf of federal candidates. Such regulations are already overdue.

Also on the docket will be complaints filed to the FEC over the role of outside activists, such as 527 groups and nonprofit advocacy organizations, in this election. And the agency remains embroiled in a lawsuit with congressional reform advocates over its interpretation of the so-called coordination rules in the McCain-Feingold campaign finance law -- not to mention the mounting backlog of routine election complaints and administrative questions.

“This is clearly unprecedented,” said former FEC commissioner Scott E. Thomas, now head of the political law practice at Dickstein Shapiro.

All this comes at a low point for the FEC. The fight over who should serve on the commission has been marked by partisan backbiting that is still not quite over. The trouble started when President Bush nominated Hans von Spakovsky to the FEC, prompting an outcry from civil rights activists who objected to von Spakovsky’s controversial voting rights record while at the Justice Department.

The Senate squabble over von Spakovsky dragged on so long that another nominee, Democrat Robert Lenhard, withdrew from consideration. Eventually, von Spakovsky did the same. Complicating matters still further, President Bush abruptly withdrew the nomination of GOP commissioner and FEC chairman David Mason.

Mason had questioned McCain’s decision to reject public financing without getting the FEC’s go-ahead, and Democrats decried Mason’s withdrawal as rank political retribution. Whatever the president’s motivations, the White House has now named a new slate of nominees.

Now awaiting Senate confirmation are: Democrats Cynthia Bauerly and Steven Walther, and Republicans Caroline Hunter, Donald McGahn and Matthew Petersen. A sixth commissioner, Democrat Ellen Weintraub, has completed her term but continues to serve on the FEC as a holdover.

There could still be bumps in the road. One watchdog group objects to McGahn’s appointment due to a campaign finance controversy involving his onetime boss, former House Majority Leader Tom DeLay, R-Texas. A federal background check on Petersen, moreover, has yet to be completed. But Senate leaders insist that action is imminent.

All this has revived calls from reform advocates to replace the FEC with a stronger agency headed by a single administrator. At a minimum, Congress should reconsider the appointments process. Thomas, for one, advocates more vetting up front, perhaps through a blue-ribbon panel that could evaluate nominees.

Congress may also want to revisit the restrictions that limit FEC commissioners to one six-year term, rules that date back 10 years.

“There’s got to be a happy medium between commissioners who serve for decades and commissioners who serve for a very short time,” noted election lawyer Jan Witold Baran, a partner with Wiley Rein. “And perhaps it would be prudent to allow for at least one reappointment.”

It’s a surprisingly urgent question. Most of the pending nominees would step into partly completed terms. McGahn’s term, for example, would expire less than a year from now, in April of 2009. Those of Bauerly and Petersen would expire in April of 2011. That means Congress may soon face yet another round of grueling FEC nominations. One can only hope it’s not as ugly and damaging as this one.

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