Both the Washington Post and the New York Times would like to see an end to the FEC nomination stalemate.  Their styles of argument are markedly different.  The Times packs in as many disparaging adjectives as the space allows, firing with abandon on its enemies; the Post adopts a more reasoned tone and makes the helpful suggestion that McCain intercede with McConnell to nudge him toward a resolution.  Both papers worry about the agency’s paralysis:  the Times points to stalled regulations on bundling, while the Post frets that the agency will be enable to certify candidate eligibility for general election public funding.

     It would be better to have the agency up and running again.  The regulatory universe will not fly apart—compliance will not collapse completely—if the agency is not soon restored to full strength, but there are problems identified by the two papers that only the agency as the law is now structured can address.  Congress could act independently to solve those problems, by fresh legislative enactments.  It is not likely to do so.   

     Senator McConnell argues in the meantime that his concern is simply that the Democrats will not honor the usual practice for appointing FEC Commissioners.  He is suspected of other motives, of wanting to highlight the dispensability of the campaign finance laws.

     He cannot mean that each party must at all times agree to support the FEC Commissioners proffered by the other.  If the merits of the arguments about Hans von Spakovsky’s re-nomination are set aside, for the sake of an argument cleared of contemporary political tensions, the question for McConnell might be:  when would one party be justified in withholding its support for the nominee put forward by the other?

     McConnell has yet to speak seriously to this issue.  But it is an important one, and the entire experience with the FEC this year suggests that the time has come for a serious discussion of it.  It is not an issue that will vanish in time.  In fact, if the FEC is reformed (or replaced) along the lines proposed by organizations like Democracy 21, its enhanced powers will raise the stakes involved in each new nomination.  There will follow more, not less, disagreement about the individuals each party recruits for the job.

     In a regulated political process, the choice of those with day-to-day control of the course of regulation can be counted on to cause a fight.  For the many years that the FEC administered a statute which changed little and threatened few, disagreements about nominations occasionally flared up but did not last long.  Now, largely because of the enactment of McCain-Feingold, the agency’s mission has become more complex, the regulations it administers and must develop more extensive, far-reaching, and frequently destined for litigation.

     The von Spakovsky deadlock is not just about that one Commissioner, at this particular time.  It would be mistake to see it that way, and to assume that if it is resolved, nothing like it will happen again soon.

Bob Bauer