Cronies At The FEC
January 05, 2006
James Sample is Associate Counsel in the Democracy Program of the Brennan Center for Justice at NYU School of Law. The Brennan Center was part of the legal team that defended BCRA at both the District Court and Supreme Court levels.
Last night, with lobbyist Jack Abramoff having entered his second guilty plea in as many days, was a moment begging for integrity in government. Instead, Congress and the White House colluded to deny the American people a public confirmation process for the individuals charged with regulating federal elections. Their action was shameless and straightforward: they used the president’s recess appointment power to sneak through a slate of politically cozy Federal Election Commissioners who will further weaken the already toothless FEC.
The indictment of former House Majority Leader Tom DeLay; the metastasizing investigation into the web-spinning of lobbyist Jack Abramoff; and the revelation that Representative Randy “Duke” Cunningham accepted over $2.4 million in bribes from a defense contractor all tended in favor of strengthening the FEC—not weakening it. But weaken is exactly what Congress and the White House did, and they did it without a public hearing.
The FEC has six commissioners appointed by the president and confirmed by the Senate, with no more than three members to be affiliated with a single political party. Although only one position was actually empty, four of the six seats on the commission were technically vacant, with commissioners serving despite expired terms. Thus, President Bush had a unique opportunity to appoint a full two-thirds of the commission. Suddenly urgent, however, the opportunity was not. In fact, the circumstances have existed since August. But because few things unite Republicans and Democrats like incumbency, the last four months produced not even a single appointment until last night when President Bush announced the recess appointments of three individuals: Robert Lenhard, Steven Walther and Hans von Spakovsky. Though unstated by the White House, the implication is that current GOP Commissioner David Mason will remain as an acting commissioner indefinitely.
The announcement of recess appointments ignored a request by the bipartisan sponsors of the nation’s principal federal campaign finance law. Recently, Senators John McCain, R-Ariz., and Russell Feingold, D-Wi., and Representatives Christopher Shays, R-Conn., and Marty Meehan, D-Mass., sent President Bush a letter urging him not to fill FEC vacancies via recess appointments. Just as importantly, the letter recommended that the president seize the “rare opportunity to change the makeup of the ineffective FEC” by nominating individuals who are “professionally qualified, independent-minded, and publicly credible.” In Washington such advice is heresy. Not surprisingly, it was treated accordingly.
Just as former FEMA Director Michael Brown was longer on connections than qualifications, so too are the recess appointees. As if to underscore Washington’s current culture of corruption, one of the Republican appointees, Hans von Spakovsky, played a critical role in upholding DeLay’s controversial Texas redistricting plan. Along with other Bush appointees at the Department of Justice, Von Spakovsky overruled the unanimous opinions of DOJ’s staff attorneys who concluded that the plan violated the Voting Rights Act. Von Spakovsky will feel right at home as an FEC commissioner since, at DOJ, he was largely responsible for undermining the very civil rights laws he was employed to enforce.
Rest assured, however, that the dynamic is deeply bipartisan. President Bush accepted Senate Minority Leader Harry Reid’s recommendations of Reno lawyer Steven Walther and labor lawyer Robert Lenhard to fill the Democratic posts. Walther, who served as an attorney for Reid in 1998, has no experience in campaign finance law. More troublesome is Lenhard, who is on record as opposing the Bipartisan Campaign Reform Act (BCRA). Lenhard worked as counsel with one of the many labor organizations that unsuccessfully challenged the constitutionality of BCRA in the courts. While not certain, it appears Sen. Reid thus acted covertly to undercut a popular law that—when the nation’s attention was trained on it—he helped to pass. The whole point is that the public was cheated of the opportunity to know. Yesterday in Washington was not a time for politicians to be offering their usual “trust me” bromides.
Questions of federal election law are complex and important. The FEC requires qualified, committed commissioners, not cronies who place politics ahead of principle. In the context of election laws, the “sides” are not limited to party leaders; they include the voters who elected those leaders in the first place. Under the circumstances, and in light of months of inaction, the recess appointments manifest a bipartisan cabal of cowardice and corruption.
Even the most attention-hungry politicians hide in the shadows when working to undermine laws regulating their own behavior. In such situations the glare of public scrutiny serves the people, not self-interested politicians. To be sure, recess appointments are appropriate—even necessary—for certain offices at certain times. But the Federal Election Commission is not one of those offices. And yesterday was absolutely not one of those times.