As the combatants see it, each side in its own way, the stand-off within the Federal Election Commission is a conflict over principle and the proper reading of the law. Commissioners affiliated with the Democratic Party say they seek reasonable but vigorous enforcement; the Republican-affiliated Commissioners say they apply only the law as it is, within constitutional limits, and not as the Democrats wish it to be. The disagreements run through a host of regulatory decisions; they affect the writing of advisory opinions, the outcome of enforcement decisions, and the decisions over whether to appeal adverse court judgments. Bad feeling seems to run high. But, as one might expect, no Commissioner would concede in the slightest that partisanship or power politics accounts for the way their positions are formulated or their votes are cast. And it is always difficult when there are differences over matters of substance to be certain of the play of politics beneath the surface. It might be suspected; it is often hard to prove.

Partisan motives may be clearer to the eye, or the suspicion of them inevitable, in matters of process. The FEC faces just such a test of process in the handling of the vacancy now created in the office of General Counsel by the resignation of Tony Herman. The General Counsel is a figure of considerable influence and importance within the agency, bearing major responsibilities for interpretation and enforcement, but he or she is a “hire” of the agency. The General Counsel is staff, and yet more than staff. The agency’s history has shown that in controversial matters, Commissioners critical of the Counsel’s position and unwilling to follow her lead have found themselves in a tough spot. They are, after all, the political appointees and, on hard or political sensitive issues, they may be pitted against a Counsel who in theory should occupy neutral ground as an independent professional attorney unhampered by partisan loyalties or pressures in interpreting the law.

The relationship has been far from an easy one. The frustration has periodically spilled into public view. See, e.g. Commissioner Bradley A. Smith, Statement for the Record In the Matter of The Coalition et. Al (November 6, 2001) at 2, n.5. So the appointment of a General Counsel is delicate business, and while in at least one instance, the appointments process dragged on before an “acting” became the formally—if, on the part of certain Commissioners, reluctantly—appointed occupant of the post, the Commission has sought to act and has acted as one, unanimously, in making the appointment. To the agency’s credit, it achieved this unity in the selection of Tony Herman, who was seen without exception as a lawyer of unquestionable quality and well-qualified for the job.

The question now will be whether the conflicts so much in evidence on matters of substance will infect the process of selecting Herman’s successor. It would seem that the Commission would have every incentive to show that there a limit to the infighting, and that it must be drawn—at the least—around a decision such as this, which is of fundamental importance to the way the agency operates from day to day. The choice of General Counsel now is properly made, as in the past, on a bi-partisan basis. Partisan division might be presented as principled difference if cast on a disputed question of law, but on this matter of process, involving the appointment of the chief legal adviser to the agency, it will look like partisan politics and nothing more, and it will be hard to explain away.

Leave a Reply