Senate Playing Game of Chicken Over FEC Nominations

For Democrats, the stakes are high for Hans von Spakovsky’s nomination to the Federal Election Commission. They say that a man who politicized the Justice Department and worked to disenfranchise voters has no place on the body regulating election issues. But the stakes for the fallout from his confirmation battle may be even higher.

Right now, the fight over von Spakovsky’s nomination is at a stalemate. Senate Republicans insist that if von Spakovsky isn’t confirmed, then none of the other three nominees to the Federal Elections Commission will get a vote. But a select group of Senate Democrats, led by Sens. Barack Obama (D-IL) and Russ Feingold (D-WI), say that they’ll prevent any vote on von Spakovsky if his nomination is tied to the other nominees. For now, neither side is budging.

In holding the other three nominees hostage, the Republicans have a clear strategy. The commission typically has six members, three of them Republicans and three Democrats. If the Senate did not vote on any of the four nominees up for confirmation, then the commission would be down to only two members by the end of the year, which would effectively incapacitate it. The commission requires four members to operate. To prevent that from happening, President Bush could stock the commission with recess appointees while Congress was out of session.

Either one of those scenarios is “fraught with potential danger,” Fred Wertheimer, the executive director of the nonpartisan watchdog Democracy 21, told me.

If the FEC were crippled, that would be bad, he said, creating a situation where outside groups funded by millionaires (like the Swift Boat Vets) could run amok in a campaign year. “That would be a license to steal and to completely ignore campaign finance laws.”

But if the commission were stocked with the president’s appointees, that would be much worse. “You could have an agency that leaves one party free to do whatever it wants, while raising concerns that the other party is breaking the law.

“The whole fight at the Justice Department over the firing of the U.S. attorneys has arisen over misusing the criminal justice system in order to influence political results…. Now, if you don’t get some legitimate form of a commission ready to go for the 2008 election, you face the same danger, except with far greater stakes involved, mainly the presidency, the Senate and House — who wins and who loses.”

Update: With regard to recess appointments, it’s worth noting that during last recess, Senate Majority Leader Harry Reid (D-NV) had plotted to keep the Senate in “pro forma” session in order to prevent Bush from making any recess appointments — a strategy that eventually led to a deal with the White House not to make any appointments that recess.