The Senate Rules Committee will next week hold a hearing on nominations to the Federal Election Commission.  Hans von Spakovsky is not one of those before the Committee:  only the "new" nominations will be before the Committee.  As hearings go, this one may be uneventful, but there have been suggestions in the editorial and reform community that one of the nominees, Don McGahn, is questionable. 

     Nothing so far informs this criticism except objections to his clients:  certainly there is no evidence that those lodging the complaint have considered his qualities as a lawyer.  And this is an unfortunate direction for this criticism to take:  McGahn’s nomination should be evaluated on its merits, and McGahn on his expertise and professionalism.

     The New York Times, on May 8, made use of a predictable set of its favored epithets:  McGahn as "Republican warhorse," whose background is "particularly partisan," and one of his clients, Tom DeLay, is singled out for an exercise in disqualification by association.  McGahn, the Times warned, was the "ethics lawyer for Tom DeLay, the former House majority leader from Texas who left office under multiple clouds." 

     One can be an ardent Democrat (as is the undersigned), and hold no brief for DeLay (ditto), and reject the relevance of this line of argument.  Set aside for the moment the obvious rejoinder that Tom DeLay, his critics should agree, needed an ethics lawyer, in the worst way.  The representation of a House majority leader is just that, a representation:  McGahn did what lawyers do, and beyond the Times’ distaste for DeLay, there is no hint of a substantive objection to McGahn’s work for DeLay—not a hint, for that matter, of any knowledge of the matters on which McGahn was consulted or the quality of representation that McGahn provided.

     Is a McGahn a Republican?  Indeed he is, and he is the nominee of a Republican President choosing an expert from his own party for a seat now held, and to be occupied again, by a Republican.  McGahn may be a member of his party and a lawyer for its institutions, a "partisan," and his dedication to the task and years of experience may well qualify him as a "warhorse."  This biography does not disqualify him for the post for which he is being considered. 

     As it happens, the Federal Election Campaign Act describes the qualities expected in a selection for the FEC.  "Members shall be chosen on the basis of their experience, integrity, impartiality, and good judgment."  2 U.S.C. § 437(c)(3).  Prior service to a political party—partisanship in that role—cannot reasonably be taken as a poor character reference, as a proof of inadequate "integrity, impartiality, and good judgment."  As an example, we have seen Jim Baker rise time and again to the partisan challenge and perform to acclaim from his party, and yet he is a Brahmin who can proceed to win additional bipartisan applause for service on high-level private sector Commissions that give advice to the nation on major and contentious election law issues.  The question, the only question, is whether, when assigned a new public service responsibility, McGahn will turn his talents to the representation of a new client, the United States. 

     Democracy 21 argues the New York Times' case (it is really the other way around, but that is a different matter) without making it better.  It skips the snippiness about his background and clientele and says simply that the nomination of Don McGahn for confirmation to serve on the FEC simply affirms that the White House and Senator Mitch McConnell have "little interest in the enforcement of the nation's campaign finance laws."  That is all.

     McGahn’s capabilities as an individual—leaving aside what some might make of his clients or party association—deserve more discriminating attention.  They should be fairly considered.  He has a record.  As a lawyer, he has produced submissions that can be evaluated for their quality and professionalism.  See here and here.   He has testified before the Congress as an expert, not for any client.  (He also collaborated in a joint Democratic and Republican party submission to the FEC, co-signed by counsel to both parties, including the undersigned.)   Reading through these writings—and how many of his critics have taken the trouble?—McGahn certainly shows his command of the material.  The positions may in this or the other respect be different from those promoted by Democracy 21 or supported by Democrats, but they are, on the whole, well argued and presented.

     The hearing now scheduled is one step in the Senate’s consideration of these nominations.  The FEC has had more than enough trouble, and what least serves the agency in this limited opportunity, for this election cycle, to return it to full strength and have it function once more is misdirected, weakly supported complaints, like the Times’ and  Democracy 21’s, about the McGahn nomination.  The nomination should be considered on its merits, and these critics have not shown the way.

Bob Bauer