Gerry Hebert is a good lawyer and a fine man but he shows none of his legal skills—and certainly not his considerable personal charm—in his most recent attack on FEC nominee Hans von Spakovsky.  His latest sortie against the Commissioner is meant to destroy his target, and not merely by a showing of professional shortcomings.  Gerry bites off the task of proving that von Spakovsky lacks "integrity" and puts politics ahead of his statutory duties.  This is what unites Gerry’s complaints about von Spakovsky’s DOJ and FEC years.  It is all personal: von Spakovsky as a "bad" Commissioner, just as he was a bad staff attorney at Justice:  he acts "outrageously," holds "absurd" beliefs, has a "perverse" wish to be on the FEC, and is no better an FEC Commissioner than Jack Abramoff was a lobbyist.

     This does not help Hebert’s claims, for what is a reader, not already predisposed on the question, to think of an argument boiling over with personal contempt and so short on reasoned argument?  How does a professional of Gerry’s standing benefit from putting his points so intemperately, with little logic but an overabundance of animus?

     Brad Smith has astute comments to make about this tirade.  He notes how Hebert assumes the authority to decide how the law is properly "enforced," and how he fudges the facts in ostensibly exposing von Spakovsky’s derelictions of duty. 

     It is still worse than that.  Hebert is incensed that von Spakovsky would suggest, during the agency’s consideration of different statutory advertising limits, that Americans don’t follow elections more than 120 days before the election.  This is laid out as another of von Spakovsky’s outrages.  Hebert does not mention that the whole question before the agency—how far the agency would extend the restriction on "coordinated communications"–depended on just this judgment of voter engagement with campaigns.  The Commission developed data, from media tracking services, that showed that House and Senate candidates rarely purchase advertising more than 120 days before an election, a finding from which one could infer that, at least in Congressional races, the purchasers of ads who are pursuing votes don’t imagine that the voters are paying attention more than four months out.  To strip all this background and context from the assault on von Spakovsky’s position falls steeply short of the standards for fair and responsible argument.

     Gerry uses other examples with similarly meager results.  He happens to disagree with von Spakovsky’s position on an issue that Hebert characterizes as one of candidates’ "off-loading…fundraising costs to contributors."  In fact, this is gross misstatement of the issue, and the merits are not as clear to others as they are to Hebert.  I, for one, thought that, on this issue, von Spakovsky was right and four Commissioners voting the other way were mistaken.  Here is the issue, as it was discussed at the time on this site.  Readers can decide for themselves. 

     At least, however, I tried to present the issue and hold up my side of the argument.  Gerry makes no such effort.  Should Gerry believe so strongly that my position, identical to von Spakovsky’s, is utterly without basis in law and fact, such that it can adopted only in bad faith, he should defend his position on the merits.

     It is not my role and not my purpose to argue the case for the von Spakovsky nomination.  Such interest as I have lies in having the arguments about this and other topics in election law conducted on some standards of fairness, care and respect for opposing views.  This is why Gerry, I and others write on these topics, and participate in conferences and seminars.  To have as the object of election law reform a superior deliberative democracy seems pointless if Hebert’s is an example of the quality of deliberation that success in the reform cause will bring.

     The style of argument adopted by Gerry here dominates all too much of "reform" politics and it does it no credit.  Whether it is practiced to the detriment of Democrats or Republicans, it should be challenged whenever it appears.  And, it is sad to say, this is not the first time that Gerry has chosen to expend his energies and to waste his estimable talents on questioning the motives and ethics of his adversaries.  Gerry, who is excitable, knows how to count to ten:  he should give it a try.

     Hebert raises, for his part, a similar point against about von Spakovsky’s use of the term "Incumbency Protection League" to counter the "reform" signage that advocates of regulation have put up as their self-description.  Perhaps Hebert can fault von Spakovsky for being injudicious in his choice of rhetorical strategy.  Von Spakovsky is hardly the first Commissioner to show impatience at having to fight a slogan when he was looking for an argument, and his point, made too crudely to Gerry’s taste, was that one person’s "reform" is another’s act of incumbent self-dealing.  The reform community wants to be able to frighten away their critics by screaming "reform!" in the night. 

     Despite this effort, the deals that reformers have cut with legislators have presented, as reform enactments historically have, legitimate worries about incumbent self-protection.  Von Spakovsy is arguing squarely within a respectable and well-established line of argument and inquiry.  If his self-expression is a bit tart, he apparently has tired, in ample company, of having this argument sneeringly batted away as "against reform."

     And is Gerry Hebert, in his venomous pursuit of von Spakovsky, the most qualified to counsel the Commissioner on the ways of tactful speech and good form in debating these issues? 

Bob Bauer