In a review of the nomination of Hans von Spakovsky, for a confirmed term to the Federal Election Commission, his prior tenure at DOJ cannot be not irrelevant.  Nothing, personal or professional, is necessarily irrelevant.  The question is how the relevant points would be identified and then weighed.  Gerry Hebert, whose distinguished career in election law, in and outside of government, entitles him to be heard seriously on the subject, argues in a letter to the Senate Rules Committee that von Spakovsky should not serve on the FEC because he served so poorly, displaying a lack of judgment, integrity and impartiality, at DOJ.  The Committee members who read Gerry’s letter will have to separate the intimation of misconduct from the passionate disagreement over policy and administration.  It is hazardous to confuse the two but very much the risk in confirmation processes.

      Hebert and von Spakovsky could not be farther apart on crucial voting rights questions addressed by DOJ in recent years.  On the merits of this disagreement, Hebert will find plenty of company among Democrats, this one included.  Postings in this space, for example, have been unsparingly critical of this DOJ’s policies and legal positions, such as its support for voter Identification requirements.  This voter ID policy, and that of the Texas redistricting plan engineered under the auspices of Tom DeLay, lie at the heart of the charge that Hebert levels at von Spakovsky in his letter to the Committee. 

      If understood to be disagreements about policy, the exceptions taken to von Spakovsky’s performance on these issues—his contributions to Bush Departmental policy—would matter greatly to a nomination to a position at DOJ in which this nominee might continue to influence the course of voting rights policy.  Hebert could make his case as an adversary and justifiably ask that it be treated as a matter of general interest, germane to the pending confirmation decision and not as the bitter residue of a long-running conflict between two advocates.  What is tricky here is that a disagreement on law and policy at DOJ, profound as it may be, seems distant from the question at hand, which is von Spakovsky’s qualifications for the FEC.

      Gerry Hebert argues that von Spakovsky did not merely read the law differently or wrongly, but that he ignored it altogether.  Sharing as I do Hebert’s view of the law, I wish that things were so simple.  It is true that the Courts rejected von Spakovsky’s position favoring the Georgia ID statute.  Elsewhere, it is sad to say, voter ID laws have fared better, and their approval is not found as far outside the mainstream as Gerry suggests.  Perhaps the most notorious of the recent judicial pronouncements supporting ID requirements was issued by Richard Posner, a lion of the legal establishment whose essays on legal topics have graced, among other publications, the New Republic.  The Texas redistricting cases were also litigated, on both the mid-decade timing and Voting rights issues, and it is fair to say that Hebert’s side—which is also my side—won some and lost most.

      Process is more, at the core, Hebert’s complaint, which is a personal charge that von Spakovsky lacks the integrity and impartiality required by statute for this position.  Here is the point which the jabs at policy hit home more personally:

Mr. von Spakovsky spent many years in Georgia before his appointment to the DOJ. He worked on voter ID legislation issues while in Georgia. He even wrote an anonymous law review article that defended voter ID bills like the one Georgia enacted. He failed to disclose this fact during the course of his DOJ review of the GA bill and as a result, an ethics complaint was filed against him by attorneys who represented minority voters.

     Of these sentences, only one, the anonymous publication, really opens up a line of inquiry into von Spakovsky’s integrity or impartiality.  That he lived in Georgia, whose ID enactment he came to review at DOJ, does carry the argument very far.  It also is not moved much forward by the fact that von Spakovsky had previously worked on the issue, it being hardly abnormal that government officials are recruited for specific positions at least in part on the basis of prior experience and recorded convictions.  Von Spakovsky’s choice to publish anonymously, on an issue within the scope of his responsibilities and before the Department, does call for explanation, and von Spakovsky will be asked to provide it.  It is hard to say what, or how much, to make of this until the explanation is heard. 

      Notably and somewhat suprisingly, Hebert does not devote much attention to von Spakovsky’s performance at the FEC.  In this post, von Spakovsky has been a principal, not staff, and the decisions he makes are his alone as a Presidential appointee to an independent agency.  If the questions that Gerry Hebert raises are ones of character, we should expect the same von Spakovsky at the FEC that Gerry found at DOJ, lacking to much the same extent in the necessary professional and personal virtues.  And we would imagine that Gerry would care about the effect of those deficiencies on the campaign finance policy matters Gerry is now actively concerned with at the Campaign Legal Center.

      Gerry Hebert has spent a career on issues that he cares deeply about as a lawyer and Democrat and it is clear what has transpired at DOJ in recent years, institutionally and in the administration of voting rights law, has horrified him.  He sees moral and ethical failings along with—and maybe the source of—the policy and professional failure.  The challenge for him, not successfully met in his letter, is to show he can prove the former, the personal failings, without simply inferring it from the fact of profound disagreement about matters of law and policy.

Bob Bauer