FEC Fight Rife With Symbolism
Democrats in the late 1980s had Reagan White House Supreme Court choice Robert Bork to knock around. Half a decade later, Republicans made political hay over the nomination of “quota queen” Lani Guinier, President Bill Clinton’s doomed pick for assistant attorney general.
But few appointments are as politically generous as Hans von Spakovsky, a current White House nominee to the Federal Election Commission. Not long ago a county-level GOP apparatchik, von Spakovsky has suddenly found himself an unlikely political pawn, wrenched in the cogs of the country’s elections regulator as the biggest cycle in half a century shifts into high gear.
“He has become a tool in a lot of causes,” said one campaign finance insider.
As 2007 came to a close, an ongoing standoff between lawmakers, advocacy groups and the White House left three of the FEC’s six bipartisan commissioners out of work — von Spakovsky and Democrats Steven Walther and Robert Lenhard, all of whom served presidential recess appointments that expired at year’s end.
With the FEC already one member down, the trio’s departure left the panel’s two remaining commissioners, Democrat Ellen Weintraub and Republican David Mason, two votes short of the quorum needed to issue fines, provide guidance and finalize investigations.
In every administration, political nominations routinely come and go, and are occasionally subjected to the whims of disgruntled outside groups and lawmakers with personal axes to grind. Sen. John Kerry (D-Mass.) last year balked at the nomination of a prominent GOP donor who bankrolled outside attack ads against Kerry during his presidential run that questioned his military service in Vietnam.
But some observers suggest von Spakovsky’s nomination has become simply a means to an end — a chance for Senators to grandstand, an opportunity for cash-strapped advocacy groups to troll for financial backers — and has created a ready-made villain for at least one presidential candidate to shore up a potential credibility gap among black voters.
The standoff over von Spakovsky’s nomination also provides an opportunity to cripple the FEC, a priority shared by many of the groups and lawmakers involved.
A Republican Loyalist
The ongoing showdown ostensibly begins at the Justice Department half a decade ago, when von Spakovsky, a wide-smiling staff lawyer, pushed GOP-backed electoral initiatives that some civil rights advocates and Democratic lawmakers now claim are discriminatory and not befitting of a presidential appointee.
In the late 1990s, von Spakovsky was a corporate lawyer and part-time suburban Atlanta election official, chairing the local county Republican Party for two years. He declined to be interviewed for Roll Call’s article, citing White House policy and his pending nomination. But all indications suggest he was little more than a shade-tree GOP political operator, not unlike other true-believing hobbyists who loiter in their spare time around party storefronts and turn out the base on Election Day.
According to campaign finance records, von Spakovsky wrote three campaign checks during that time — $500 apiece to now-Sens. Johnny Isakson (R-Ga.) and Lindsey Graham (R-S.C.) and to former Sen. Mack Mattingly (R-Ga.) for his ill-fated comeback attempt in 2000.
Like other feisty Republican diehards, energized after eight years of Clinton rule, von Spakovsky caught his big political break in the days after the 2000 presidential election, when a too-close-to-call Florida return went to a recount. He quickly enlisted as a volunteer observer, spending two days in Palm Beach County tediously peering over the shoulders of election officials as they analyzed ballots.
Within months after the recount, von Spakovsky had applied to the Justice Department for a new position overseeing the rewrite of voting guidelines.
Technically a nonpolitical position, von Spakovsky’s new gig was to be one of three in-house lawyers who advised political appointees on voting guidelines as the Help America Vote Act made its way through Congress.
After HAVA’s passage in 2002, von Spakovsky was promoted to special counsel at the Justice Department, a post he testified to the Senate Rules and Administration Committee last year amounted to middle-management.
Largely isolated in his first Justice Department post, the staunch conservative undoubtedly found himself immediately behind enemy lines, an outcast in an agency that conservatives believed was infiltrated by left-leaning activists.
A conservative campaign finance lawyer interviewed by Roll Call said that, at the time, von Spakovsky’s new department had “a long history of being pretty far out there.” The agency had a record for being scolded for its partisanship, the source said — once “for being totally in cahoots with left-wing groups.”
Von Spakovsky’s ideological bent appeared to quickly grate his new DOJ peers. Over-ruling other lawyers in the department, his critics say he pushed controversial proposals in Texas and Georgia’s new law requiring that voters prove their identities at polling places.
Von Spakovsky’s few apologists now claim that although the two cases involved in his nomination fight make for convincing sound bites, motivations on both sides of the argument are largely political. And if von Spakovsky’s support of voter identification laws was so controversial, they argue, what does that say about Supreme Court justices who may come out in favor of a similar Indiana law in a ruling expected next summer?
“They have a very nice superficially appealing case,” a source said of Texas’ controversial redistricting plan. “If you actually look at the cases in detail, the court found that [von Spakovsky’s] judgment on the legal issues was right, as often as that of [other DOJ] staff.”
Von Spakovsky’s brash management style at the Justice Department also earned him few fans among career staffers, who considered him a White House sycophant who retaliated against his co-workers when they crossed him.
“What drives Hans is a deep, abiding mistrust of civil servants,” Toby Moore, a former DOJ voting rights employee, told Roll Call last summer. “That really was his guiding principle … animosity for civil servants.”
A source also said von Spakovsky earned a similar reputation soon after arriving at the FEC in 2005, but soon backed off.
“I certainly saw a little bit of that personality, particularly early on,” the source said. “I don’t have trouble imagining that he was an abrasive guy [at the Justice Department]. He soon figured out that it’s a different structure [at the FEC], that staff wasn’t really at war with the policymakers.”
Few Natural Allies
So with few colleagues to vouch for him, von Spakovsky ran into a perfect storm last year when his nomination came before the Senate, campaign observers say. The U.S. attorneys scandal was in full tilt and civil rights groups began grumbling about von Spakovsky’s nomination.
Campaign finance reform groups such as the Campaign Legal Center, led by former Justice Department lawyer Gerry Hebert, criticized von Spakovsky’s nomination almost daily, a ploy one campaign finance insider said was an attempt to cast him in a popular role.
“You need a villain. You need a threat to raise funds,” the source said. “In recent years, several of the big foundations have said they’re not really interested in funding more campaign finance” projects.
“Reform groups have hated the FEC for a long time,” the source continued. “They really don’t care that much if it works. … For them, maybe if things get worse, they’ll get better.”
In a blog posting late last year, Democratic campaign finance lawyer Bob Bauer also blamed reform groups for the agency’s shutdown.
“It is not just the perfect that was the enemy of the good: it was a reform community that has been a sworn and implacable enemy of the FEC,” he wrote. “Rules were never good enough; enforcement actions like those taken against 527 organizations after 2004 were predictably attacked as too little, too late. All the while, the reformers developed and lobbied an alternative to the FEC, the Federal Election Administration, and had therefore openly invested in the present agency’s failure.”
Hebert denied that the current FEC shutdown was by design. In an interview with Roll Call last week, Hebert said Senate Minority Leader Mitch McConnell (R-Ky.) — no fan of the FEC himself — is responsible to allowing negotiations over the FEC nominations to break down last year.
“Our goal was never to see the FEC in a position where it didn’t have enough commissioners to do its business,” Hebert said.
Observers also say von Spakovsky’s nomination hit the skids for good last year when presidential candidate Sen. Barack Obama (D-Ill.) spoke out against his nomination — a move seen in some corners as an attempt perhaps to convince civil rights groups to support him over rival Sen. Hillary Rodham Clinton (D-N.Y.).
Obama, Kerry and Sen. Sherrod Brown (D-Ohio) all have placed holds on von Spakovsky’s nomination.
“Here was something that was below the radar for most people, but very important to a small part of the Democratic Party base,” a source said. “And [Obama could] get it and use it in an effective manner.”
The White House said late last week that von Spakovsky’s nomination remains under consideration but, for now, there is little indication of a new deal in the works over FEC appointments. And with von Spakovsky and the two other pending FEC nominees now off the agency’s payroll, the showdown appears headed for a game of chicken, pitting livelihoods against President Bush’s determination and one presidential candidate’s ambitions.
“Obama’s clearly not going to take his hold off as long as he’s viable,” one source said. “It’s really hard to see the impasse breaking at this point.”