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As Primaries Begin, the FEC Will Shut Down
No Quorum on Election Board As Nominees Stall in Congress

By Matthew Mosk
Washington Post Staff Writer
Saturday, December 22, 2007

The federal agency in charge of policing the torrent of political spending during the upcoming presidential primaries will, for all practical purposes, shut its doors on New Year's Eve.

The Federal Election Commission will effectively go dark on Jan. 1 because Congress remains locked in a standoff over the confirmation of President Bush's nominees to the panel. As a consequence, the FEC will enter 2008 with just two of six members -- short of the four votes needed for the commission to take any official action.

"There is, in effect, nobody to answer the phone," said Robert F. Bauer, a leading Democratic campaign finance lawyer.

Although the 375 auditors, lawyers and investigators at the FEC will continue to process work already before them, a variety of matters that fall to the commissioners will be placed on hold indefinitely. Chief among them are deciding whether to launch investigations into possible campaign finance violations and determining the penalties.

Seven presidential candidates have applied to receive public matching funds for their campaigns, but they may not be able to access the money until the FEC certifies their requests. That takes four votes.

The national political parties each anticipate an infusion of about $1 million from the U.S. Treasury to help pay for their national conventions. Releasing that money takes four votes.

And then there is a range of vexing campaign finance questions that hang in limbo: Can a firm that operates a blimp accept unlimited contributions to fly it over New Hampshire with Ron Paul's name on the side? Can a senator use his campaign account as a legal defense fund? How will campaigns comply with the new law that requires them to identify the lobbyists who are collecting campaign checks on their behalf?

"Work on those questions will grind to a halt," said FEC Chairman Robert D. Lenhard, whose recess appointment will expire on New Year's Eve. Lenhard said he did not wish to reflect on the situation, other than to offer a familiar lament.

"Politics," he said glumly yesterday, before returning to the ice rink to skate with his daughter. "That's what generated this situation."

The FEC is composed of three appointees from each party, all nominated by the president. There is already one vacancy, and three recess appointments will expire on Dec. 31.

The potential for an FEC shutdown has been looming for weeks, as a handful of Democratic senators voiced opposition to one of Bush's nominees to the commission, Hans A. von Spakovsky. Their concern stemmed not from von Spakovsky's work on the FEC but from his tenure in the Justice Department's civil rights division.

His critics contend that von Spakovsky advocated a controversial Texas redistricting plan and fought to institute a requirement in Georgia that voters show photo identification before being permitted to cast ballots.

"I am particularly concerned with his efforts to undermine voting rights," Sen. Barack Obama (D-Ill.) said in a statement released in September after he placed a hold on von Spakovsky's nomination. Obama and others gathered more opposition to von Spakovsky's nomination by drawing civil rights advocates into a lobbying effort for its rejection. They attracted the involvement of a number of groups, including the NAACP and the Leadership Conference on Civil Rights, that typically would not be engaged in a battle over an FEC nomination.

The blockade worked, but Republican leaders in the Senate countered with one of their own. If von Spakovsky were rejected, they would not allow the two Democratic nominees to be appointed, either.

"The Democrats have picked their nominees, and we've picked ours," Senate Minority Leader Mitch McConnell (R-Ky.) said as the Senate prepared to recess for the holidays. "What we have here," he said, is "the Democrats trying to veto one of our nominees. That isn't going to happen. They're all four going to go together, or none of them will be approved."

The result, said Loyola law professor Rick Hasen, is a game of chicken in which no one has blinked. "When that happens, you get a collision. And that's what they got."

When it comes to federal matching funds, Democrat John Edwards has the most to lose. The FEC certified the payment of the first installment of funds this week, including $8.8 million for Edwards. But matching payments for money he has raised this month, or will receive in subsequent months, may have to wait until the FEC has four members.

There is debate among campaign finance lawyers about whether matching funds could be released without a formal commission vote, one Edwards campaign official said. Because the next installment of funds would not arrive until after the early primaries, strategists inside the Edwards campaign said they are not worried.

"We have the necessary resources to wage an aggressive campaign with the funds we currently have on hand," said Eric Schultz, a spokesman for the campaign. "We fully expect the FEC to meet their obligations under the public financing system."

As senators left town this week, the small community of lawyers and advocates who monitor campaign finance law tried to take stock of the new reality. There will not be total lawlessness, they said. The statute of limitations on most campaign finance violations does not run out for five years, so when the commission is at full strength, it will be able to pursue complaints.

But the notion of a decapitated agency is not sitting well with many of the nation's top election lawyers.

"For all of the complaints about the FEC, when it comes to campaign finance law, it is the enforcement agency," said Lawrence Noble, a former FEC general counsel. "We're in the middle of one of the most hotly contested elections in recent years -- where you have a campaign that started so early, where they're raising more money than ever before, where there are new concerns about fundraising and about the bundling of contributions. I think the public would like to know that someone is keeping an eye on all this."

The prospect for a resolution of the deadlock remains uncertain. The Senate will not resume work until mid-January, and the entire nomination process will have to begin anew, starting with Bush submitting his nominees.

Bush will continue to push Congress to confirm the current slate of nominees, including von Spakovsky, according to White House spokeswoman Emily Lawrimore. At the same time, Lawrimore said, the president recognizes the need for the FEC to function.

"We continue to encourage the Senate to vote on these nominations as a package," she said. "It's critical for the commission to be able to operate fully and effectively. We believe the right leadership needs to be in place."

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