Election Agency Lacks Quorum To Rule on Key Issues This Year

26 Feb 2008 // The federal agency that polices campaign spending and fund raising lacks enough members to rule on an array of issues critical to this year's elections, thanks to a fight over a controversial nominee between Senate Democrats and the White House.

Among the big questions that can't be answered until the nominating impasse is resolved: Whether Sen. John McCain must abide by spending limits on his campaign, how much lobbyists must disclose about their fund raising and rules for outside groups that try to influence races.

The six-member Federal Election Commission has lacked a quorum since the end of December, when the terms of three commissioners expired. Another seat on the commission remains vacant. That leaves only two sitting members on the agency -- not enough under federal law for the panel to take any action.

"It means there is no one to enforce the law," said Melanie Sloan, executive director of Citizens for Responsibility and Ethics in Washington, a liberal-leaning watchdog group with several election-law complaints pending at the FEC. "It's like the Wild West."

The battle is over Hans von Spakovsky, a controversial lawyer formerly in the Justice Department's Civil Rights Division. President Bush put Mr. von Spakovsky on the election commission two years ago as a temporary "recess appointment," made while Congress was out of session. His appointment was one of the three that expired in December. President Bush renominated all three.

Mr. von Spakovsky, however, can't get through the normal Senate confirmation process because of objections from presidential candidate Barack Obama of Illinois and other Senate Democrats. They say he promoted policies at Justice that harmed minority voters.

To win confirmation, Mr. von Spakovsky would need to win a 60-vote supermajority in the 100-member chamber, but he doesn't have that much support. Republican senators have said they won't support Democratic nominees to the election commission without a deal putting Mr. von Spakovsky back on the panel.

A White House spokeswoman, Emily Lawrimore, said Mr. von Spakovsky wouldn't have any comment while his nomination is pending, adding, "We think the nominees should be provided with a swift vote."

The impasse poses particular peril for Mr. McCain. Last year, after his White House campaign nearly went broke, the Arizona senator applied for a cash infusion through the public-financing program, which matches small donations with taxpayer funds.

In exchange for the promise of receiving $5.8 million for his primary election bid, Mr. McCain agreed to abide by strict spending limits during the nominating contest. Then he changed his mind about accepting public funds after key victories in the primary contests.

But FEC Chairman David Mason wrote Mr. McCain last week that without a quorum, the commission couldn't vote to grant his request to withdraw from the public-financing system.

Mr. Mason also suggested that even with a quorum, the commission might not automatically grant Mr. McCain's request to opt out, given that a bank had lent the campaign $4 million last year.

Mr. Mason said in the letter it wasn't clear that the prospect of public financing hadn't been used as collateral to secure the bank loan.

Trevor Potter, a McCain campaign lawyer, disputed the assertion. "The campaign did not use our existing right to participate in the presidential public funding system as collateral for the loan," Mr. Potter said. "We have been clear on that from the start, and so is the bank."

The Democratic National Committee yesterday filed a complaint with the FEC to stop Mr. McCain from leaving the public-financing system. If the FEC doesn't have a quorum in 120 days, Democrats can ask a federal court to review its complaint. The McCain campaign could be fined if it is found to have broken campaign laws. Mr. McCain could even face criminal penalties if the FEC decides he knowingly broke the law, though the commission rarely refers election cases for criminal prosecution.