Bush's FEC Ploy: Save McCain, Save Hans
by Adam B
Thu May 08, 2008 at 07:55:23 AM PDT
When last we left the Federal Election Commission, the lights were on but no one was really working. Four of the six commissioners' nominations expired at the end of 2007, leaving the the Commission shy of a working quorum as Democrats remained steadfast that odious nominee Hans von Spakovsky receive a separate up-or-down vote, which Senators on both sides of the aisle recognize would sink his nomination, which is why Sen. Mitch McConnell refused to go along with it.
[A full FEC has six Commissioners, with no more than three allowed from any political party. It takes four votes for it to do anything.]
Time marched on. The FEC has been unable to investigate important complaints which have been filed, but it has also been unable to release John McCain from the public financing limits per his request. It would also be difficult for McCain to then receive public financing for the general election come September should there not be a functioning Commission to administer the program.
And, in the meantime, former FEC Chairman Bob Lenhard, a Democrat who'd have no trouble being re-confirmed, withdrew his name from re-nomination last month because of the delays.
The solution would seem simple: have Bush replace von Spakovsky with an acceptable nominee, end the logjam and move on. But, of course, that's not how it works.
Instead, the White House has kept von Spakovsky's nomination and located two new Republican nominees for vacancies on that side of the aisle -- NRCC lawyer (and former lawyer for Rep. Tom DeLay) Donald McGahn and Caroline Hunter, who has sat on the Election Assistance Commission despite having no relevant experience previously.
This, however, required jettisoning Commissioner Mason, who had been a seriously roadblock to McCain's scheme to evade the public financing limits and whose confirmation was assured. Sen. Reid is, understandably, miffed.
[On the Dem side, Commissioners Ellen Weintraub and Steven Walther will remain; Lenhard's slot would be filled by Cynthia Bauerly, Sen. Schumer's legislative director.]
Democracy 21 president Fred Wertheimer, our frenemy, has this to say:
The White House dumped Mason after President Bush had twice proposed Mason for the FEC in the last two and a half years, in December 2005 as a recess appointment and in January 2007 as a nominee to the FEC for Senate Confirmation.
The only apparent reason for President Bush to drop Commissioner David Mason at this stage, an FEC candidate he had twice proposed for the Commission, is to prevent him from casting an adverse vote against Senator McCain on important enforcement questions pending at the Commission. The questions deal with Senator McCain’s request to withdraw from the presidential primary public financing system and the consequences of a loan the McCain campaign took out and the collateral provided for the loan.
Under these circumstances, President Bush’s dumping of Mason can only be viewed as a bald-faced and brazen attempt to wrongly manipulate an important enforcement decision by the nation’s campaign finance enforcement agency.
The White House action today represents the political equivalent of obstruction of justice.
Noted Democratic election law attorney Bob Bauer weighs in:
The reason for the White House to act now is to restore the FEC to full voting power, which is not usually a Republican priority but now serves the immediate need of giving Senator McCain the most direct, statutorily routine access to public funding for the general election. In this one move, the White House ended McCain's accountability for his use or abuse of the primary public financing system while putting him in position to take money for the general.
For this maneuver to have been arranged for the benefit of Senator McCain, of all people -- the John McCain who has regularly, severely criticized the FEC as a "corrupt" agency -- is a remarkable turn in his career as a reformer. A Commissioner who acted to enforce the law, to just raise an important question of enforcement, has been stripped of his post. This was clearly in Senator McCain's interest, this raw power play. It is also in his interest to have the FEC, back in business minus Mason, arrange for his money for the fall campaign.
It is inconceivable that McCain was not informed of the plan. In fact, it is highly probable that he was in involved in its formulation or its approval. In the days ahead it will be seen whether he will be asked about his role.
It is an obvious question and a fair one. This development at the FEC, after all, is one of kind. For all the time that McCain has savaged the performance of the FEC, he has led the sizeable crowd of critics who believed that the agency is too beholden, on the whole, to the narrow interests of parties and their candidates. Yesterday, Republicans could not have acted more narrowly in just this vein: effectively firing a Commissioner to immunize their Presidential nominee from enforcement action in a pending case but making sure that there is enough of an agency left to get him the money needed to finance his campaign.
I should note that Commissioner Mason was strongly on the netroots' side throughout the whole debate over regulating political activity online, and I always found him to be a decent, sincere man, whatever differences we may have had on other issues. During those 2005 hearings, he dressed down then-IPDI head Carol Darr on the whole question of who should receive the protection of the "media exception" from campaign finance law, explaining why bloggers merited equal treatment in a way that any of us would agree with:
I think part of the reason is a lot of us kind of don't understand your point or your concerns, so I want to probe it a little bit and first starting from the Internet and one of the first major Internet decisions, which was about protecting pornography, of all things: the Supreme Court celebrated the fact that on the Internet, everyone can be a publisher, and they said this is a great thing. And a lot of us looked at it, and we say this is a great thing. So from the supply side, if you will, what is the problem if lots of the things on the Internet are judged to be publications, just like traditional?
And from the other side, you know, we look down; General Electric, which may be, what, the second biggest corporation in the world owns, you know, big media; Cap Cities, Disney, Murdoch, Time-Warner; I mean, you know, these are -- if you want to talk about holes in the corporate prohibition, these are huge. And as you have suggested, they are limited in some ways by some professional standards, but what we've heard from the Internet people is you have not only the sort of professional obligations of a lot of the sites but their credibility; in other words, the social pressure within the Internet itself to police activity. So I guess I just don't understand what you're concerned about losing by a broad expansion of the media exemption to Internet activities.
But there is good news, if this NYT report is credible: "The White House declined on Tuesday to withdraw Mr. Spakovsky’s nomination, but a spokeswoman, Emily Lawrimore, said Republican officials were now willing to allow each of the nominees to be voted upon separately."
If that's the case, we might actually have a functioning FEC before the Fourth of July.
update: Never mind the alleged good news; McConnell still says no separate vote on von Spakovsky.
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