Apr 8, 2008 -- Chicago Tribune: Election watchdog paralyzed
By: James Oliphant

The nation's election watchdog sits paralyzed—unable to meet, give advice, fashion new rules or open investigations, even as the most intense presidential campaign in recent memory rages on.

The six-seat Federal Election Commission is down to two functioning members, two short of a quorum. Three potential commissioners await confirmation by the Senate, trapped in a cold war between Democrats and Republicans over one of the nominees, whom civil rights groups accuse of hostility to minority voters. The last seat does not even have a White House nominee.

There is little sign that the impasse will be resolved any time soon. And the clock is ticking. The Senate will be in session for about three more months before the national nominating conventions this summer.

Key issues risk going unaddressed, including whether presumptive GOP nominee Sen. John McCain of Arizona broke campaign laws by abandoning public financing and accepting private contributions without FEC approval. Democratic candidate Sen. Barack Obama of Illinois has said at various times that he would accept public financing for the general election, but his campaign has not committed to that, drawing criticism from McCain.

"This situation has a substantial impact on parties and candidates who want to comply with the law," said Michael Toner, a former FEC chairman.

The sticking point is a former Justice Department official named Hans von Spakovsky, whose work in the voting-rights section of the department has prompted Democrats to block his nomination.

Von Spakovsky, a Republican, was nominated by President Bush more than two years ago and served as an acting FEC commissioner since then before having to leave at the end of last year because he has not been confirmed.

Senate Majority Leader Harry Reid (D-Nev.) has called on the White House to pull von Spakovsky and replace him with someone more palatable to Democrats, but that seems unlikely.

"I can gather one thing from the president's unwillingness to resolve the Federal Election Commission problem," Reid said on the Senate floor in February. "That is that they would rather have no election watchdog in place during an election year."

Senate Republicans, led by Sen. Mitch McConnell (R-Ky.), have adopted a position as inflexible as Reid's: If not von Spakovsky, then no one.

And so the FEC limps on, a commission in name only. Created in 1975 as a response to the abuses of President Richard Nixon and Watergate, the panel usually is composed of three Democrats and three Republicans, an attempt to ensure fair rulings on partisan disputes. Critics have always called it a toothless tiger, and some suspect that politicians like it that way.

But rarely has the commission been quite this toothless. With only two commissioners, its staff can close pending cases but can't open new ones, nor can it hold a public meeting or issue advisory opinions. One group recently sought an opinion about its status as a political action committee; another sought a ruling involving the use of Internet toolbars in issue advocacy. The commission has had to remain silent.

"It's a disservice to the public," said Meredith McGehee, policy director of the Campaign Legal Center in Washington. "It shows to what degree this agency's a political football."

In McCain's case, his campaign asked the FEC in early February whether it could withdraw from a government program that provides public matching funds for presidential candidates. His campaign said it had not received any of the federal money yet.

The FEC responded that only a commission vote could release McCain, and that could not happen because of the vacancies. The FEC also said it needed more information on whether McCain had used his access to public funds as collateral for bank loans last year when his campaign was hard up for cash. The McCain campaign said public funds were not used that way.

Meanwhile, McCain in March blew past the $54 million expenditure limit set by the FEC for candidates who accept public financing. When the FEC finally has a quorum, whenever that it is, it will have to determine whether his campaign has violated the law.

But that is far from the only issue awaiting new commissioners. The agency must implement a proposed rule that would force campaigns to disclose contributions "bundled," or collected, by lobbyists. But the FEC can't adopt that rule until it has a quorum. Even after that happens there's a waiting period for comments, so if the delay lasts much longer, the rule would have no effect for the current election campaign.

Civil rights groups have rallied to block von Spakovsky because, as a Justice Department official, he backed so-called voter ID laws. Critics say these laws, which require voters to show identification at the polling place, discriminate against minorities. Von Spakovsky's detractors also say he sometimes ignored staff recommendations in his eagerness to embrace conservative positions.

When Democrats declined to approve von Spakovsky, Bush named him in a recess appointment, and he served on the FEC until the end of 2007, when he was required to step down.

Reid has offered to send von Spakovsky to the Senate floor for an up-or-down vote, but McConnell has refused, saying FEC nominees have traditionally been packaged in bipartisan pairings so one party can't prevent the other's nominees from sitting on the commission. Von Spakovsky is tentatively "packaged" with Democrat Steven Walther, a close friend of Reid's from Nevada. Presumably if they were voted on together, both would be confirmed.

Former FEC Chairman Bradley Smith, who, like von Spakovsky, has been an outspoken critic of campaign finance restrictions, said that's the real reason some groups are opposing von Spakovsky.

"A lot of reform groups would like to keep him off because of his campaign finance views," Smith said. "But they can't do that."

If the impasse isn't resolved soon, the FEC could go through the rest of the year and into 2009 as a paralyzed enforcer. And if election violations are occurring now, they could be that much harder to investigate down the road.

"The older these cases become," said Toner, the former chairman, "the more it erodes the ability of the agency to prosecute them."