Brad Smith’s holds strong and well-argued beliefs about government regulation of politics, and he stands mostly but not always with his party on that issue.  For example, Republicans have known temptation, abandoning their deregulationist platform for the more immediate satisfactions of pursuing 527s critical of President Bush in the 2003-2004 period.  Smith would have none of it, to his credit.  Now Smith finds himself pulled the other way, falling into formation with Republicans who wish to disclaim the blame for the stalemate over the FEC.

     Brad makes the case that Senator McConnell is not to be blamed for the Senate’s inability to fill the agency’s vacancies and bring it back to life.  Smith suggests that Democrats, opposing the nomination of Hans von Spakovsky, are violating a tradition of respecting the other party’s choices for the FEC.  They are doing this, Smith insists, because von Spakovsky is a vocal critic of the campaign finance laws, and he argues further that the Democratic insistence on an up or down vote on von Spakovsky, rather than a vote on all pending nominations as a group, is a procedural trick to force out the unwanted Republican.  

     This is wrong, through and through, and so much so that it is hard to believe that Brad, normally wary of partisan pap, has written it.  Brad must know that von Spakovsky's opposition has nothing to do with the campaign finance laws, and everything to do with his prior employment with the Department of Justice.  Occasionally, the argument against von Spakovsky brings up the FEC years, but largely to raise questions about his temperament or judgment and not to suggest that Republicans deeply skeptical of campaign finance regulation cannot serve at the FEC.  And even if this is a view held by any of von Spakovsky’s adversaries, Smith knows well that it is not the prevailing view, and it is not the cause of von Spakovsky’s political troubles, or the FEC’s. 

     Smith errs further and profoundly in his suggestion that an up or down vote on von Spakovsky is a break with the parties’ agreement that each will respect the other's nominees to the FEC.  The understanding to which Smith refers is an understanding about the type of candidate each is entitled to have nominated and confirmed—the type of nominee that each believes will fairly represent the party’s interests and approach when and if those interests and approaches are relevant or require a defense.  Fairly or unfairly, one party may be moved to complain about the individual nominee of the other—about temperament or background.  This is tricky, without doubt; as I have acknowledged, but I have also stated, and cannot see how it can be denied, that a candidate’s prior background and government service are relevant to an appointment to a federal agency.

     This is what has happened here, and it is the rarest of occurrences:  but no Democrat can, no Democrat does, imagine for a moment that if the President were to nominate someone else to the von Spakovsky post, his or her views on campaign finance regulation would be different in kind—more progressive or liberal or accommodating—than those of von Spakovsky.  And while Republicans may believe that von Spakovsky ably represented their interests at the FEC, Smith knows that he is not uniquely able to do so.  Indeed there are others on tap for this post who have still more years of experience with these laws than von Spakovsky, who had little when appointed.

     What Smith puts out of his mind or chooses not to include in his post is the matter of Senator McConnell’s motivation in refusing the up or down vote that would end this impasse.  McConnell—the McConnell of McConnell v. FEC—is not sleepless over the decommissioning of the FEC.  He is, in fact, thrilled about it.  He has no use for the agency; now he can show that it is, more or less literally, useless:  out of action, its immobility can be shown, McConnell believes, to make no difference. 

     Finally, Brad argues that the FEC stand-off has promise for Democrats in  their quest for the Presidency, in opposition to John McCain.  This is fancy footwork by Smith.  He insinuates that these benefits might persuade the Democrats to stand firm against the resolution Smith seeks, a package vote and the confirmation of von Spakovsky.  But it is insinuation only:  it can’t be more than that, because Smith has no evidence on which to rest a charge that Democrats expect to benefit from an incapacitated FEC.

     Brad Smith’s posting proposes to answer the question "Why the FEC Lacks a Quorum," but the answer he gives is the party line, one party’s line, which is not usually what one finds in a Smith piece.

Bob Bauer