Feb 16, 2008 -- National Journal: Toothless Election Watchdog
By: Eliza Newlin Carney

A Senate standoff has rendered the Federal Election Commission toothless as a watchdog agency by depriving it of the quorum necessary to enforce and interpret election laws.

Without at least four commissioners, the FEC, which is supposed to have six members but is down to two, cannot issue advisory opinions, approve regulations, investigate or prosecute violations, or file suit. It also can't distribute public funds to presidential candidates.

"We are trying to provide informal advice to folks, to fill in the gaps, since we can't provide advisory opinions," says FEC Vice Chair Ellen Weintraub, who is a Democrat.

The terms of three commissioners expired in December. Their replacement has been delayed because one of President Bush's nominees, former Justice Department official Hans von Spakovsky, is so controversial he has sparked a confirmation battle in the Senate. The chamber's Republicans want all four FEC nominees (Chairman David Mason is up for reappointment) voted on as a package. Democrats want a separate vote on von Spakovsky, who is opposed by civil-rights groups because of his efforts to strengthen voter-ID requirements.

Both sides have dug in their heels. To complicate matters, the FEC dispute has become entangled in a larger fight over more than 180 judicial and agency nominations languishing in the Senate.

Despite lacking a quorum, the FEC continues to receive and disclose campaign finance reports. Its staff members keep working on enforcement cases, litigation, regulations, and opinions. And a special rules change in December by the two remaining commissioners has even enabled the commission to hold public meetings.

But a long list of pending FEC issues will soon come to a head. These include several high-profile lawsuits that the shorthanded commission will be unable to appeal if it loses. Some political players, including conservatives who typically revile the FEC, already complain that its near-shutdown has made it impossible for them to pursue certain political activities.

A start-up conservative group dubbed SpeechNow.org, for example, asked the FEC recently whether it could run certain types of political ads without abiding by contribution limits. At the FEC's January 24 open meeting, Weintraub said no. But Chairman Mason, a Republican, gave a qualified yes. That left SpeechNow in limbo, and the group is suing in federal court.

The FEC impasse "is a gag on speech, basically," complains David Keating, SpeechNow's president. "When people ask for advisory opinions, they're asking for guidance on whether they're allowed to speak. And if you can't get an answer, you don't feel like speaking."

Keating is also executive director of the anti-tax Club for Growth, which in a separate matter in November asked the FEC whether it could tweak the rules for verbal disclaimers on a series of short TV ads. Without a quorum, the FEC couldn't answer, and the Club for Growth shelved those ads.

FEC action has also stalled on a key element of the new lobbying and ethics law enacted last year, the provision that requires candidates to disclose the donations that lobbyists "bundle," or round up, on their behalf. "As of right now, the chances of us being able to issue bundling regulations in time to make that requirement effective in July, which is when it was contemplated, are approaching zero," Mason says.

All of this has enraged campaign finance watchdog groups, particularly because the nation is in the midst of a presidential campaign. The regulatory vacuum is "irresponsible," declares J. Gerald Hebert, executive director and director of litigation at the Campaign Legal Center , which vigorously opposes von Spakovsky's confirmation. "Having an agency that sometimes doesn't function well is better than having no agency at all," he said.

The most immediate problem for presidential candidates involves public funding. Election law requires a quorum of four commissioners to certify candidates for public financing and to distribute the money once it becomes available. There has been speculation that the FEC's problems could trip up Sen. John McCain , R-Ariz., who was one of several presidential candidates to qualify for primary-season public funding.

However, McCain has said that he might forgo primary-season public financing -- and the strings that accompany it -- now that his campaign has fewer money problems. Some reports have suggested that an FEC quorum might be required to decertify McCain. But the candidate's campaign counsel, Trevor Potter, an election lawyer at Caplin & Drysdale and a former FEC chairman, does not foresee a problem.

"What the commission has said in the past is that the system is voluntary and that if a candidate wishes to withdraw prior to receiving public funds, they may do so," Potter says. Because the presidential fund won't become solvent until next month, McCain has yet to receive any public money. That means he probably won't need special permission to refuse it.

But other problems will loom once the general election campaign begins. Both McCain and Sen. Barack Obama, D-Ill., have said that, if nominated, they would opt into the public financing system for the general election -- provided their opponent does the same.

So, if McCain and Obama are the nominees, both might well ask the FEC for public money come September. But if the agency is still limping along with two commissioners, they'll be out of luck. "Some time between now and the end of August, if either candidate wants to use public funding, the commission will have to have a quorum," Potter concedes.

Securing one is by no means a given, some FEC-watchers warn. "I think there's a real possibility that this impasse will not be broken this year," says former FEC Chairman Michael Toner, a Republican who is now a partner at the international law firm Bryan Cave .

Commission nominees kept hanging too long could bow out, Toner cautions. There has already been speculation that von Spakovsky might withdraw. Any new nominees would be subject to a fresh round of background checks and Senate scrutiny, which would delay confirmations for "many months," Toner says.

The Senate standoff shows no sign of ending soon. Several Senate Democrats, including Obama, blocked action to vote on von Spakovsky along with the three other nominees. (In addition to Mason, the others awaiting confirmation are Democrats Robert Lenhard and Steven Walther.) Von Spakovsky is under fire for his Justice Department role in clearing a controversial Georgia voter-ID law that was later ruled unconstitutional and for approving a Texas redistricting plan that was partly struck down in court.

Senate Majority Leader Harry Reid , D-Nev., offered an up-or-down vote on von Spakovsky alone last year, but Republican Leader Mitch McConnell , R-Ky., refused. At the time, McConnell, a longtime foe of campaign finance regulations and of the FEC, said flatly: "They're all four going together, or none of them will be approved."

Senate Democrats are equally intransigent. "What can be done? The White House can withdraw his nomination," says Reid's spokesman, Jim Manley, referring to von Spakovsky. "Nothing more, nothing less."

This is not the first time that senators have bickered over a controversial FEC nominee. Bradley Smith was vigorously opposed by Democrats and watchdog groups in 2000 but was eventually confirmed on an up-or-down vote in a deal that also cleared the way for votes on 16 of President Clinton's judicial and executive branch nominees.

Still, Toner says, "the process has never ground to a halt like we've seen here." Toner's departure last year created one of the vacancies on the commission. Even when the fight over von Spakovsky is resolved, moreover, the confirmation battles over FEC nominees won't end. The White House has yet to name a replacement for Toner or for Weintraub, a holdover commissioner who is not eligible for another term.

The longer the impasse continues, the bigger the headaches for the FEC and those it regulates. If nothing else, the backlog of complaints and enforcement matters will be formidable. "Just working through that backlog is, I think, going to be a big challenge," Mason predicts. "And the longer it goes on, the bigger that challenge gets."