The Missing Referee

Friday, December 7, 2007

WHAT IF the country held an election and there was no one to make sure that candidates played by the rules -- no agency that could issue regulations, write advisory opinions or bring enforcement actions against those breaking the law? This isn't a fanciful scenario: It's the situation that will occur next year if the Senate is unable to break an impasse over confirming new members of the Federal Election Commission. With recess appointments set to expire at the end of the current congressional session, the six-member commission is about to be left with two members, one Republican and one Democrat. Both of their terms have expired, too, but they can stay on the job until successors are confirmed (the Republican has been nominated to a second term). The trouble is that four votes are required for most significant actions.

The standoff involves a slate of nominees that includes Hans A. von Spakovsky, a Republican serving a recess appointment. Mr. von Spakovsky is opposed by civil rights groups and a number of Democrats, not because of his actions at the FEC but because of his previous role at the Justice Department's Civil Rights Division. So far, Republicans are unwilling to back down and Democrats refuse to budge, and the fates of three other nominees are delayed as a result.

Mr. von Spakovsky is not the FEC commissioner we would have chosen -- not by a long shot. At Justice, he overruled career staff members who urged that the department block enforcement of a Georgia voter identification law; the requirement was ultimately found unconstitutional. Similarly, he blocked career staffers who wanted to stop a Texas congressional redistricting plan; a divided Supreme Court later rejected part of the plan. Six former voting section employees asserted that Mr. von Spakovsky participated in politicizing the Civil Rights Division.

During his tenure at the FEC, Mr. von Spakovsky has at times sarcastically referred to campaign finance reform advocates as the "IPL," or "Incumbency Protection League." He has compared some campaign finance rules to the Alien and Sedition Acts. Over the top, yes, but Mr. von Spakovsky has not demonstrated the utter hostility to campaign finance laws that led us to oppose, unsuccessfully, the confirmation of former FEC member Bradley Smith.

The problem is that neither side in this fight has much reason to blink. Incumbent senators of both parties have little incentive to make certain the agency charged with policing their campaign activities is functioning. Reform groups that have long complained, with ample justification, that the FEC is a toothless agency in need of an overhaul aren't inclined to go to bat to save it. Those who view the FEC as the "campaign finance police" are all too happy to see it disabled. Mr. von Spakovsky's critics believe that getting the FEC back on track is not worth the price of his confirmation; his defenders -- not fans of the agency in any event -- see little reason to back down.

We see it differently. In a critical election year, a flawed FEC is better than no FEC at all. Confirming Mr. von Spakovsky may be distasteful, but it is better than the alternative.

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