Farewell to Three Commissioners

On Monday night, the recess appointments of three FEC Commissioners will expire, and they will become private citizens once more.  Quite a bit has been said about the "shutting down" of the FEC (oh that it were really so – see my commentary here), but very little has been said about the three commissioners who are being unceremoniously evicted, as it were, the victims of partisan and petty politics over which they have no control.

I do not know Commissioner Steve Walther; outgoing Chairman Bob Lenhard I know only slightly;  outgoing Commissioner Hans Von Spakovsky, my successor at the FEC, I have come to know a bit better.  The three deserve congratulations for a job well done under difficult circumstances. 

For those who haven’t followed the story, in a nutshell it is this – Hans Von Spakovsky holds views on campaign finance law that the so-called "reform" community doesn’t like, and being of the belief that no one who doesn’t share the views of the "reform" community should have anything to do with public policy on political regulation, that community doesn’t want Von Spakovsky on the FEC.  At the same time, the "reformers" know that they are not strong enough to block Von Spakovsky’s nomination to a Republican FEC seat, given that Von Spakovsky’s views are thoroughly within the GOP mainstream on campaign finance issues (or maybe a bit left of the GOP mainstream – after all, admits the Washington Post, he "has not demonstrated the utter hostility to campaign finance laws that led us to oppose, unsuccessfully, the confirmation of former FEC member Bradley Smith.")  But they have a kicker, and it is this – while previously serving in the Voting Rights Section at the Department of Justice, Von Spakovsky played a major role in depoliticizing an ideologically charged career bureaucracy.  Those bureaucrats gradually left DOJ, seeking haven in a variety of left-leaning and leftist activist groups, but vowing revenge on Von Spakovsky for helping to upset their apple cart.  Von Spakovsky’s nomination to the FEC gave them that opportunity, and for months, abetted by the typically credulous media, they have been trumpeting bogus charges about Von Spakovsky’s alleged extremism and voter suppression. 

Enter presidential politics. Voters don’t know much about, much less understand, how the Voting Rights Act works, or what the Voting Rights Section does, or what Von Spakovsky did while working there.  But the charge of "racism" is a powerful one, and repeated often enough about a nominee regarding whom voters are unlikely to hear anything else (FEC nominations being rather low salience affairs for the average voter), it can be a wedge issue with a small number of voters.  Barack Obama, struggling to gain the black vote, decided to play a race card, and blocked Von Spakovsky’s nomination.  Senate Republican leader Mitch McConnell held the line – if Republicans could not get the Senate to confirm a Republican with mainstream Republican views on campaign finance to a Republican seat on the FEC, then the Democratic nominees could also pound sand – no vote on any of the three Commissioners serving as recess appointees. And there things stand.  Von Spakovsky is a victim of personal vendetta from disgruntled ex-bureaucrats at DOJ; Commissioners Lenhard and Walther are innocent bystanders – we might say victims of friendly fire from Senator Obama’s would-be Air Force One. 

All this should not obscure that the three men have helped to accomplish much at the FEC.  They have continued a broad approach put in place earlier in this decade, of attempting to levy meaningful penalties on violators of the law while easing the enforcement process for those who comply with law and are found not to have violated the Act.  One of the most notable changes in this regard is a small, pilot program for allowing respondents to appear in person before the Commission in some cases, something we are hopeful the Commission will expand.  Under Court order to do something, and in very difficult circumstances, the Commissioners passed a very sensible rule of internet regulation.  They crafted a wisely restrained rule on coordinated activity, realistically balancing the needs of enforcement with the need to prevent the chilling of Constitutionally-protected First Amendment activity.  They were hardly perfect (who is?) – Commissioner Walther, in particular, was too regulatory for our blood.  The black mark on their tenure is their zealous, stretched and probably unconstitutional approach to regulating independent "527s," which has further fouled campaigns and confused the status of the law.  But on the whole their positions, and the Commission’s actions during their tenure, were marked by thoughtfulness and moderation.  In the face of relentless lobbying from a reactionary "reform" community stuck in a 1970s regulatory mindset, the Commissioners remained open to new approaches and ideas at a time when technology and politics are rapidly changing the face of campaigns and expanding opportunities for citizen participation. 

We here at CCP favor radical reform (indeed repeal) of most campaign finance laws in the direction of freedom.  But FEC Commissioners are stuck in a more mundane world of trying to make an inherently contradictory law work, in an environment where no one has much incentive to praise their efforts.  It’s easy to take the cheap shots (indeed, we can’t help but note that there are whole websites more or less devoted to taking cheap shots) at the FEC.  Within this difficult environment, the "Recess 3" worked hard to improve the system, with some tangible results.  So from this perhaps unlikely quarter, we wish to congratulate and thank Commissioners Lenhard, Von Spakovsky, and Walther for their service. 

The Center for Competitive Politics is now the Institute for Free Speech.