Up or Down

Monday, January 28, 2008

"WE NEED to get him to the floor for an up-or-down vote as soon as possible," Sen. Mitch McConnell (R-Ky.) said of Michael B. Mukasey, then the nominee for attorney general. John R. Bolton "deserves an up-or-down vote so that he can continue to protect our national interests at the U.N.," Mr. McConnell said of the nominee to be United Nations ambassador. "Let's get back to the way the Senate operated for over 200 years, up-or-down votes on the president's nominee, no matter who the president is, no matter who's in control of the Senate," he said during the dispute over judicial filibusters.

Mr. McConnell's devotion to the principle of up-or-down votes for nominees, it turns out, has limits: Apparently fearing defeat if a simple majority vote were allowed, the minority leader has refused to accept Senate Democrats' offer for such a vote on President Bush's choice for a Republican seat on the Federal Election Commission. The consequence is that, as the country begins an election year, the agency entrusted with overseeing enforcement of the federal election laws is all but paralyzed: Only two commissioners are in place, meaning that the agency, six members when it is at full strength, cannot initiate enforcement actions, promulgate rules or issue advisory opinions.

The standoff involves Hans A. von Spakovsky, a former official in the Justice Department's civil rights division who had been serving as an FEC commissioner until his recess appointment expired last month. Democrats and civil rights groups argue, with some justification, that Mr. von Spakovsky's tenure at Justice was so troubling that he does not deserve confirmation to the FEC post. Some Democrats had threatened to filibuster the nomination, but Senate Majority Leader Harry M. Reid (D-Nev.) managed to offer an up-or-down vote on each of the four pending nominations to the agency, two Republicans and two Democrats. But Mr. McConnell and fellow Republicans have insisted that the nominees must be dealt with as a package, with no separate votes allowed. To be fair to Mr. McConnell, the practice has been to vote on FEC nominees as a package to ensure that the politically sensitive agency remains evenly divided between the two parties. But that has not been an absolute rule; indeed, the last nominee who generated this much controversy, Republican Bradley A. Smith, had a separate roll call vote and was confirmed 64 to 35 in 2000. But Senate Democrats could commit to a quick vote on a replacement nominee, if they were able to muster the votes to defeat Mr. von Spakovsky.

We have suggested previously that it is more important to have a functioning FEC than to keep Mr. von Spakovsky from being confirmed. But Mr. McConnell ought to explain why the up-or-down vote he deemed so critical in the case of Mr. Mukasey, Mr. Bolton or appellate court nominee Miguel A. Estrada is so unacceptable when it comes to Mr. von Spakovsky.

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