FEC Nomination Politics

     Gerry Hebert brings a rousing and authentic passion to his argument for a full Senate Rules Committee review of the record of FEC nominee Hans von Spakovksy, an incumbent by recess appointment.   Hebert mostly rages against von Spakovsy’s complicity in Bush Administration DOJ’s disregard, then curtailment, of the authority of its Voting Rights Section professional staff.  Hebert wants the Committee to go over this ground thoroughly but he is fairly convinced that von Spakovsy has much to answer for.  And he sees in the Commissioner’s behavior at the FEC much the same rank politicization of law enforcement. 
 
     Hebert is not going far afield in asking for the Rules Committee to consider the President’s nominations closely.  This is what the Rules Committee has the jurisdiction to do.  Unfortunately, the questions he proposes for the Committee confuses a number of issues.  This is a shame, because while it would be entirely fair to ask Commissioner von Spakovsky to respond to some questions and to evaluate his nomination on the answers, it is important to be clear about which ones and why.  Hebert does not do so, and in the end, he opens himself to the charge that he is cheapening his case; presuming to seize the moral high ground to essentially dispute the very legitimacy of an opposing point of view on policy.  His argument is highly personal when it might have been more sharply tuned to policy.  It appeals to process when its real difference is one of substance.

     For example, Hebert argues, as have others, that the Department of Justice under this Bush has corrupted the historic, nonpartisan mission of the Voting Rights Section.  It is in the design of this otherwise respectable argument that Hebert runs into trouble.  For example, Hebert argues for the professional standing of staff and believes that without good and written reasons, their recommendations should stand.  He seems to suggest the same for the FEC.  Von Spakovsky, he claims, violated this principle in the first case and may have done so in the second.  This claim—different from the claim that the Department overruled the staff wrongly, on the issues before it—is not so obviously correct. 

     Staff is staff; and any new Administration, in charting a new course on policy, may well stand against its own career staff.  The Bush Administration is at fault less for its disagreements with staff, or even its wish to have political appointees make the final calls, and more for the management of that conflict.  On the face of it, as presented in press accounts and other snippets of publicly available information, the Administration has acted in ways that unavoidably invited the suspicion of political manipulation of the law, such as in the mere 24 hours apparently needed to reject the staff recommendation and pre-clear the Georgia photo ID law.  This is a failure; it is not to be minimized, since the appearance of the impartial administration of the law is central to the public credibility of the Department.  This position has been expressed in this space, too, where there has appeared sharp criticism of the Department’s management of Voting Rights Act policy and enforcement.  (And the disagreements with the Department posted here and published elsewhere have also extended to the substance of policy.)

     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.  Hebert wants to go further, however.  He wishes to put the question with the right answer, about the special place of “professional staff,” already well established and ready for use against von Spakovsy.

     In this and other ways, Hebert has made, ironically, a political case against von Spakovsky:  a political case in the sense that, motivated by disagreement about legal policy, it is argued on other, more procedural grounds but with the goal of achieving the preferred policy outcome.  For it is clear that Hebert is defending staff, at DOJ and the FEC, because he is more confident that he will agree, on the merits of key decisions, with the staff and not with their appointed superiors.  This is the principal reason, certainly, why over the years, the reform community has publicly questioned the FEC for resisting staff recommendations.  It has never been a matter of principle that, as reformers would have it, political appointees should give staff the benefit of the doubt or explain why it would not.  It was simply that reformers expected that outcomes at the staff level would be more to their liking.

     Hebert spins his case to political effect in other ways.  Here is a telling portion of the Hebert argument:

But even putting aside his controversial tenure at DOJ, von Spakovsky’s performance at the FEC over the last year independently raises questions of whether he is worthy of Senate confirmation.  His comments at FEC meetings have often been caustic and extraneous to the issue at hand.  He has consistently scoffed at the spirit of campaign finance laws, thumbing his nose at the law as he seeks to help create routes of circumvention.  He even accuses those reformers who seek regulation of the role of money in our political process as attempting to take us back to the days of the Alien and Sedition Acts.  This is an easy accusation to make, and von Spakovsky has employed it a number of times, and it certainly is easier to attack those he disagrees with rather than to explain principled reasons for his own actions.

     This is pure invective.  In any event, “caustic” commentary is hardly out of bounds; and of recent Commissioners, von Spakovsky cannot take the gold for “extraneous” observation at the Commission table.  Holding a Commissioner to the Campaign Legal Center’s definition of the “spirit” of the campaign laws is the oddest of charges in a piece otherwise devoted to attacking von Spakovsky for playing fast and loose with the clear dictates, the plain commands, of the law.  There is no way out for opponents of the Center:  skirt the letter of the law and stand condemned, but be true to the law’s plain language and stand accused of indifference to its spirit.  By Hebert’s account, von Spakovsy is a busy man, engaged all at once in all sorts of gestures of disrespect for the law:  “scoffing” and “thumbing his nose” and “creating routes of circumvention,” all at the same time. 

     Of course, as Hebert well knows, reform issues bring out strong feelings on all sides, and over the years, reformers have made a good living with the suggestion that those who disagree with them are cavorting with the corrupt and circumventing the law and opposing “reform.”  Read an editorial on the subject in the New York Times and have no doubt:  it is indeed, as its editorialists have demonstrated with regularity, “easier to attack…than to explain principled reasons.”  

     Perhaps Hebert should have counted to ten, and then argued the specific decisions on which the Administration, on the merits, was wrong.  He might have explained precisely how the Commissioner has disqualified himself with positions taken on specific issues before the FEC.  This is how he could have attempted to argue his cause, had he been prepared to argue it that way.  

Bob Bauer