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Return of the FEC « The Washington Independent

Throughout this presidential primary season, the Federal Election Commission, which polices spending on campaigns for Congress and the presidency, has been dormant. This has created a dilemma for Sen. John McCain (R-Ariz.), the presumed Republican nominee for president.

David Mason, the chairman of the FEC and a Republican, had questioned whether McCain could opt out of public funding for the presidential primary after using the promise of public money to get a loan. Mason, though, is but one of two current commissioners for a federal government panel that’s supposed to have six members– three Democrats and three Republicans– and requires the approval of four commissioners to issue rulings or allot money to candidates. Without a commission ruling, McCain has proceeded to spend $80 million — about $30 million more than allowed for candidates on public money.

(Matt Mahurin)
(Matt Mahurin)

McCain has a second FEC issue. While he opted out of federal financing for the primary season, he is expecting to take advantage of public funding for the general election. So he needs a working commission to sign off on providing his general election money.

A flurry of FEC-related activity in the past two weeks now suggests that McCain’s dilemma is about to be solved. President George W. Bush has nominated enough commissioners to get create a working six-member FEC. But Mason is not one of them.

The president replaced him with three Republican nominees — none of whom have questioned McCain’s loan. One is the ethics lawyer of former House Majority Leader Tom Delay, who faced indictment while in office. Another is a former Republican National Committee lawyer. The third is a staffer on the Senate rules committee, the very committee that approves FEC commissioners.

One might expect Democrats to complain about three Republican nominees that together could provide a tidy solution to McCain’s campaign finance problems. But the Senate majority leaders aren’t raising objections. "Don’t worry about David Mason, that’s in the past," Jim Manley, spokesman for Sen. Harry Reid (D-Nev.), the Senate majority leader, told The Washington Independent. "We’re working hard to get the FEC up and running."

Democrat’s satisfaction with the White House’s nominees may be because the two Democrat nominees look equally disinclined to investigate one of their own. One, in fact, was Reid’s personal lawyer.

So if the FEC does return to business, the government watchdog will continue its tradition of commissioners with strongly partisan ties. The president, with Congress, seem to have again ensured that during an election year the FEC probably won’t bite McCain, or any politician.

"The nominees coming in are very closely aligned with either the Democrats or Republicans," said Scott Thomas, a Democratic FEC commissioner between 1986-2006. "Their decision-making may focus more on party interests."

Many experts say that Congress appointing commissioners who won’t cross party lines is the nature of the FEC. "It’s a pretty much unchallenged idea that each of the parties gets to pick its nominees," said Rick Hasen, a law professor at Loyola University in Los Angeles, who specializes in election law. Three Democrats and three Republicans, Hasen says, ensures that "there will be deadlocks when things are controversial."

But the FEC has been unable to make any rulings since December. That’s when Bush’s recess appointments expired, leaving the agency with only two commissioners — Mason and a Democrat, Ellen Weintraub, a legal ethics expert. Lacking a quorum, the panel has been unable to act throughout this election season. "We’ve taken a step back and looked at long-term projects," Weintraub told The Washington Independent. "But it’s been awkward."

Appointing the commissioners needed for a quorum was held up by the White House’s nomination of Hans von Spakovsky, a Georgia Republican. Senate Democrats refused to confirm von Spakovsky. His nomination was stopped not because of his record on campaign finance, but because of his work at the Justice Dept., where labor and civil rights groups accused him of seeking to disenfranchise minority, poor and elderly voters.

So when Bush nominated three FEC commissioners in early May, it wasn’t considered notable. After all, Sen. Mitch McConnell (R-Ky.), the top Senate Republican, had said he would only vote on commission nominees as a package — following the White House lead to get von Spakovsky’s appointment through as part of a group. Reid, however, vowed that Senate Democrats would not consider any nominee package that included von Spakovsky.

But the calculus changed a week later, when von Spakovsky suddenly withdrew. Before the Memorial Day recess, the Senate rules committees approved Bush’s three nominees — Democrat Cynthia L. Bauerly of Minnesota and two Republicans, Caroline C. Hunter of Florida and Donald F. McGahn from Washington. The full Senate will now consider the three nominees, plus Steven Walther, a Nevada Democrat whom the rules committee had already approved.

Bauerly is the legislative director for Sen. Charles Schumer (D-N.Y.), who served as head of the Senatorial Campaign Committee, where he helped orchestrate the Democratic take-over of the Senate in 2006. Hunter, meanwhile, was former deputy counsel of the Republican National Committee from 2001-2005.

McGahn was the ethics lawyer of former House Majority Leader Tom DeLay (R-Tx.), who resigned in an ethics scandal. Walther has served as Reid’s private attorney.

Weintraub defends the highly partisan make-up of the four nominees who may join her at FEC. "If you’re looking for people with the most experience in election law," she said, "you’re going to find them defending these high-profile clients."

The nominees, however, will not be joining David Mason. FEC commissioners serve seven-year terms and Mason’s was set to expire. Bush had originally re-nominated Mason. But when the president’s nominations for Republican FEC commissioners were announced in May, Mason had suddenly been replaced by Hunter and McGahn.

Following von Spakovsky’s withdrawal, the president again had an opportunity to re-nominate Mason as the third Republican. But right before the Memorial Day recess he chose as the sixth, and final commissioner, Matthew Peterson, a Republican staffer on the Senate rules committee. Peterson’s nomination will now come before that very committee. "When you pick someone from a Senate staff," said Hasen, the Loyola law professor who keeps an election law blog. "It’s a courtesy that they’ll be approved."

So Mason looks to be out after 10 years as an FEC commissioner. He arrived at the FEC in 1998 with a partisan history himself, having worked for former Senate Majority Leader Trent Lott (R-Ms.), when Lott was House minority whip. But Mason soon started taking actions not in line with the normally partisan commissioners.

"Mason strayed from the reservation one times too many," said Hasen. "The McCain letter was the straw that broke the camel’s back."

Mason wrote a letter to McCain in February, saying that a candidate can’t use the public funds program as "security for private financing." Mason’s inquiry was related to the fund-raising travails last year of McCain’s presidential campaign. In December, the McCain campaign, reportedly used the promise of public financing as collateral for a million-dollar loan. McCain then opted out of public funds after a series of victories, that, under the GOP’s winner-take-all primary rules, virtually guaranteed him the nomination.

"It’s a reasonable claim that McCain trapped himself in the public financing system," said Bradley Smith, a Republican commissioner on the FEC between 2000-2004.

Mason declined a request for an interview. Trevor Potter, counsel for McCain and a former FEC chairman himself, posted on Hasen’s election law blog that Mason writing a letter to McCain is not tantamount to accusing him of violating campaign finance laws.

Weintraub described as a Mason as a highly respected colleague. She declined to comment on his departure.

A reconstituted FEC is not likely to find McCain in violation of campaign finance law. But they are expected to give the candidate an $84 million dollar grant for entering the public finance system in the general election. McCain, co-sponsor with Sen. Russ Feingold (D-Wis.) of the 2002 Campaign Finance Reform Act and a longtime advocate of publicly financed campaigns, has made a point of saying he will use public money in the general election. He has even pressured Sen. Barack Obama (D-Il.), the likely Democratic nominee who has raised three times more money than McCain, to honor a campaign pledge and also apply for public funds.

"No FEC would have been awkward situation for McCain," said Smith, now a law professor at Capital University in Ohio. "Now they’ll be able to release the money."

Neither party seems inclined to have the FEC do much rule-making — beyond providing money for McCain and other national candidates seeking public funds. "It’s unconscionable that we’ve had no FEC during the presidential election process," says Kenneth Gross, a campaign finance lawyer with Skadden, Arps. "It’s been a clear signal to the regulatory community what Congress and the president think about the commission."

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