Why The FEC Lacks a Quorum

Well, the campaign finance story of the week has been the squabble over whether or not Senator John McCain can opt out of the tax financing system in the primaries.  I have voiced a very qualified yes.  But there are some thorny issues, so we can hardly blame Democracy 21, aka Fred Wertheimer, if they aka he can’t quite make up their aka his mind[s].  However, there is one thing that Mr. Wertheimer Democracy 21 always knows, as if by instinct – if there is a campaign finance problem, it is Mitch McConnell’s fault.  And, in a bit of ironic humor, they quote from an authoritative source – Democratic Party press releases – to prove it!

See, Senator McCain’s predicament stems in part from the fact that the Federal Election Commission lacks a quorum that could clearly rule on the question of whether or not Senator McCain is out of the taxpayer-financed system, and therefore freed from its spending limits.  And why is this?  Senate Democrats have opposed the nomination of Hans von Spakovsky to a full term on the Commission.  Mr. von Spakovsky served with distinction on the Commission for two years as a recess appointee, but that recess appointment expired last December 31, as did the recess appointments of two Democratic commissioners, Steve Walther and Bob Lenhard.  Add in the vacant seat of Commissioner Mike Toner, who resigned last spring, and the six member commission lacks the four commissioners needed for a quorum. 

We won’t go into the reasons for Democratic opposition to Commissioner von Spakovsky here, but as I have argued elsewhere, basically the problem seems to be that von Spakvosky holds views shared by most other Republicans.   

The tradition at the FEC is that each party gets three Commission seats, and each party appoints its own commissioners.  That this should be the tradition is due to the fact that having a government campaign regulator is a really bad idea, and deep down both parties know it – so they jealously guard a system that makes certain neither party will dominate the Commission.  This means some measure of bipartisanship is needed for the Commission to act, and even self styled reformers such as Werth Democracy 21 are quick to invoke this bipartisan legitimacy of the Commission when it suits their needs. 

As Senate Minority leader – and previously as Senator Majority Whip – Mitch McConnell has steadfastly defended this tradition – each party picks its own commissioners.  Traditionally, Commissioners are confirmed in pairs, one Republican and one Democrat, in order to assure this.  The votes may occur separately, but even then it is always understood that one party cannot block the opposing party’s nominees.  Senator McConnell is insisting here that the four nominees – two Republcians and two Democrats, including von Spakovsky – be confirmed as a package.  Last fall, McConnell and Majority Leader Harry Reid reached an agreement to do just that, only to have it scuttled by Senator Barack Obama, who placed a "hold" on von Spakovsky.  And there things have stood since.

Now Senator Reid is trying to play McConnell for a sucker.  Or better put (since Senator McConnell is clearly no sucker), he is trying to play the press for a sucker to turn up heat on Senator McConnell.  And Fred We er, Democracy 21, is playing along, for its own reasons (i.e., to attack Senator McConnell).  Reid is offering an up or down vote on the 4 nominees, one at a time.  To the casual journalist observer, this seems eminently fair – after all, haven’t Republicans been complaining that Reid won’t allow up or down votes on nominees for the judiciary?  And that’s what Democrac er Mr. Werth -Democracy 21 is counting on.

But this ignores the unique history of the FEC, and the unique role it plays in directly regulating campaigns and potentially, therefore, determining who gains the upper hand in the fall elections.  Reid knows what a straight up or down vote on the nominees, one at a time, means: it means that the two Democrats will be confirmed, and von Spakovsky will be defeated on a straight party line vote, thus allowing the Democrats to dictate the Republican commissioner.  Reid would never agree to this were the shoe on the other foot, and back when Republicans were running the show, Senator McConnell would never have thought to demand it. 

So the FEC stays without a quorum.  For Democratic Senator Barack Obama, whose hold prevents the four nominees from being confirmed last fall, this is not a terrible thing.  It means:

a) Senator McCain cannot get FEC clearance to withdraw from the primary tax funding plan.  The DNC has filed an FEC complaint against McCain, and so long as the FEC is paralyzed, Senator Obama and the DNC can go after McCain on the issue (although, conversely, an FEC ruling against Senator McCain would be very bad for the latter);

b) If the deadlock lasts long enough, it could mean that the FEC will be unable to pay out funds for the General Election.  This will give Senator Obama an excuse to renege on his pledge, made last year, to take the tax subsidy in the general election.  It is widely believe that skipping the tax funding will give Senator Obama a big financial edge on Senator McCain.

c) It means the FEC cannot approve final rules for reporting lobbyists’ bundled contributions to candidates.  Although Senator McCain has taken contributions from lobbyists, Senator Obama has not, and made this a campaign issue.  Many in Washington, however, believe that Senator Obama does have lobbyists as bundlers for his campaign, even if the lobbyists are not giving directly.  If true, the new reporting rules would reveal that, which could be embarrassing to Senator Obama.  (We point out, of course, that if not true then Senator Obama may have an incentive to get the FEC up and running).

Meanwhile, Democracy 21, which desperately wants to keep von Spakovsky off the FEC because von Spakovsky does not share Fred Wertheimer’s extreme regulatory views, hopes that the pressure to have an FEC quorum available to rule on McCain’s tax financing will force Senator McConnell’s hand.

The reform lobby is many things, but it is rarely less than calculating and cynical.

Update 3/3/08: I have posted here a response to comments on this post made by Bob Bauer.

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