Obama Exploit Election Commission?

American Conservative Union Foundation ^ | March 26, 2008 | Marion Harrison

[K-oneTexas]

Obama Exploit Election Commission? by Marion Harrison
Issue 104 - March 26, 2008

Opinions vary as to the worth of the role of the Federal Election Commission (“FEC”) when it fully is functioning as prescribed by law. Regardless of one’s opinion as to whether the Federal election law scheme as legislated and implemented is the ideal, FEC is the duly constituted Federal regulatory agency and the only one. How dysfunctional - maybe just plain bizarre - that FEC should be stalemated as the country enters a time when both political parties could be disabled by its inaction.

FEC by statute is comprised of six Commissioners, nominated by the President, by and with the advice and consent of the United States Senate. At the moment it has only two Commissioners - hence, no quorum, no function.

How did this dearth develop? The short, and somewhat oversimplified, answer is that some Democratic Senators, including a first-term Senator from Illinois who is seeking the Presidency, by the (arguably iniquitous, but in any event sometimes misapplied) use of a “hold” have blocked one nominee, with the ensuing effect of holding up all of them and creating and perpetuating vacancies.

After the Supreme Court invalidated the original plan for appointments to the commission, the Senate Majority and Minority Leaders were Senators Michael J. (Mike) Mansfield, of Montana, and Hugh Scott, of Pennsylvania. They were competent and pragmatic and worked together well to get things done. They entered a gentleman’s agreement that each would choose three individuals, those names informally would be forwarded to the President; and the Senate would confirm them. (So much for separation of powers between the Executive, Legislative and Judicial Departments, but that’s a separate, and at times theoretical, Constitutional subject. I like it, partially because a Supreme Court Justice and I lecture about it each summer.)

The foregoing informal agreement held until well into the William J. (Bill) Clinton Administration and to some extent has worked since then. It combines the pragmatic values of assuredness, promptness and bipartisanship. The alternative is an FEC which is nonfunctional, overtly political by favoring one party over the other, or both. As of this writing, while daily and routine FEC business continues, the agency cannot make policy, adjudicate complaints with finality or act with respect to major issues - as, by way of example and not limitation, allowing statutorily authorized matching funds.

The Senators, including Senator Barack Obama (D-IL), are blocking the confirmation of Presidential nominee Hans von Spakovsky. Opponents claim that von Spakovsky, who served 18 months as an FEC Commissioner by recess appointment (that is, without Senatorial confirmation), supposedly promoted policies while a Department of Justice lawyer adverse to some voters from racial, or possibly ethnic, minorities. Whether von Spakovsky did so, there is no serious allegation, if any at all, that he acted unacceptably during his 18 months as a recess-appointee FEC Commissioner. No substantive reason is evident as to why the Senate could not confirm the other two Bush nominees, which would bring FEC to four Commissioners and a functioning quorum.

Might it be sheer coincidence that the Obama hold on the von Spakovsky nomination and the absence of Senatorial confirmation of the other two FEC nominees preclude any FEC approval (or disapproval) of the request of Senator John S. McCain, III to withdraw from the public-financing system? Or that the impasse, preceding what well may be a McCain - Obama November 8 contest, presently is weakening, and may continue to weaken, the McCain candidacy?

Marion Edwyn Harrison is President of, and Counsel to, the Free Congress Foundation