Robert Lenhard’s withdrawal from consideration for reappointment to the Federal Election Commission is new evidence of the quagmire in which the agency sits — but it also offers an opportunity for a temporary way out.
The way out would be for the White House to nominate — and the Senate quickly confirm — two new commissioners, giving the panel four members, two from each party, and the ability to get work done this election year.
It may well be that the White House doesn’t want the commission to function because one of its major tasks is to determine whether Sen. John McCain (R-Ariz.) must abide by tight campaign spending limits for the next four months — meaning he could spend nothing — because he allegedly offered his ability to collect public funds as collateral for a bank loan to keep his campaign afloat.
McCain’s campaign contends he did no such thing and is free to spend as much as he can raise because he did not opt into the public finance system. But the issue was raised by FEC Chairman David Mason and would be considered by the commission — if it had enough members to constitute a quorum.
Of course, it does not. So, the Democratic National Committee has gone to court to force the FEC into action. But it still has only two members — Republican Mason and Democrat Ellen Weintraub — and legally can’t act without four members.
Lenhard, a Democrat, had a recess appointment to the commission that lapsed four months ago, while awaiting confirmation for a full term. But he justifiably got fed up hanging in limbo and took himself out of consideration this week to go to work at a law firm, presumably for a lot more money than public service pays.
Departing from the scene, Lenhard warned that the White House and Senate leaders need to approve nominees before June or the FEC will have to shut down until a new administration takes office. He’s exactly right.
It’s fairly clear that the Senate is not going to act on the two nominees before it, Nevada lawyer Steven Walther, a friend of Senate Majority Leader Harry Reid (D-Nev.), and former Justice Department official Hans von Spakovsky because Senate Republicans are demanding that both be approved at the same time — along with Mason, who needs to be reconfirmed — while Democrats want separate votes. They want to defeat von Spakovsky, who provoked controversy within the voting rights community over his work at the Justice Department.
Instead of confronting that impasse, the White House and Senate Democrats ought to agree now on a replacement to fill Lenhard’s vacancy and another created by the departure of former Chairman Michael Toner. Names for both slots are in circulation. The question is: Do politicians want the nation’s election watchdog awake and active this year, or locked up and put to sleep?