Posted: 10/29/07

     Brad Smith has come to the defense of Commissioner von Spakovsky with, among other arguments, citations to my commentary on this site.  In the space allotted to him, Smith is necessarily selective, and what he chooses to quote can give readers unfamiliar with the controversy a skewed impression of my stated concerns. 

     I would begin with this, quoting from one of my posts: “It is not my role and not my purpose to argue the case for the von Spakovsky nomination.”   And I  have not suggested that Commissioner von Spakovsky should be shielded from questions about prior service at DOJ.  Again, quoting:  “So to ask von Spakovsky his views on this record seems unexceptionable, well within the range of questions reasonably asked of a Presidential nominee with a prior record in public service.”  And further, of his record, that: “Nothing, personal or professional, is necessarily irrelevant” to the consideration of his re-nomination.  And I made it clear, as I have written elsewhere, that I am among those who have been sharply critical of this Administration’s voting rights policies, notably on voter identification.

     My point has been this:  "The question is how the relevant points [about the merits of the von Spakovsky nomination] would be identified and then weighed.”   And much of the argument, as it would bear on nomination to the Federal Election Commission, has been strained, tendentious and off the point.  There have been attempts, in assessing von Spakovsky’s voting record at the FEC, to suggest that difficult campaign finance questions can be answered only one way, all other answers being illegitimate.  Von Spakovsky has been faulted as well for caustic criticisms of the direction of the campaign finance laws—a position he is not alone in holding, since there are now progressive voices heard increasingly loudly on the same point.   And I pointed out that as much as I disagree—and I do, strongly—with this Administration’s position on voter identification requirements, von Spakovksy's position on the other side does not seem sufficient to disqualify him from a federal appointment that lies largely in the hands of his own party, which happens to share more or less across the board the same, profoundly unfortunate stand on voter ID.  

     My concern as an observer of the FEC, a student of campaign finance policy, and a practitioner before the agency has been a new politicization of FEC nominations.  By that I mean that if a Democrat is elected President, I would prefer to deny Republicans the opportunity to argue, citing von Spakovsky as precedent, that a future Democratic nomination may be blocked because the nominee held objectionable views outside the sphere of campaign finance.  Having observed over the years the misuse of campaign law to advance partisan objectives—the Republicans' wish to shut down “527s” critical of President Bush is one celebrated example—I am confident we would be better off with less rather than more of this.  The extension of this particular front in the partisan wars to include nominations cannot be welcome.

     Now this does not  mean that nominations should not be scrutinized, nor that the scrutiny should not extend to conduct in prior government or private sector service.  All nominations to all agencies are open to this kind of examination.  So, should (and, we assume, has been) the von Spakovsky nomination, and those voting on the nomination should make of this record what they will.  But the quality of the arguments can’t be unimportant, not if the FEC is to survive with any credibility as an agency that can regulate political activity without becoming merely a tool of partisan political struggle.

Bob Bauer