Federal Election Commission Left in a Lurch

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The presidential campaigns are hitting full throttle, but the Federal Election Commission is on the verge of being left leaderless. The FEC is yet another victim of the deep freeze that allows no compromise between the White House and Capitol Hill.

SCOTT SIMON, host:

With the presidential races hitting full throttle, this should be prime time for the agency that oversees campaign finance laws. Instead, the Federal Election Commission is on the verge of being left leaderless, yet another victim of the deep freeze that allows no compromise between the White House and Capitol Hill.

NPR's Peter Overby reports.

PETER OVERBY: Yesterday was the Federal Election Commission's last meeting of 2007. Naturally enough, the five commissioners started by setting the schedule of meetings for 2008.

Mr. ROBERT LENHARD (Chair, Federal Election Commission): Any discussion on the motion? Hearing none. All in favor indicate by saying, aye.

Mr. LENHARD and Unidentified Group: Aye.

OVERBY: Everyone voted for the schedule, but three of the five, including Chairman Robert Lenhard, who called the vote, probably won't get to any of the meetings; that's because they're about to lose their jobs. They've been serving as recess appointees, installed while Congress was out of town. But they've never been officially confirmed by the Senate; without that confirmation, they go off the payroll when this year's session of Congress ends next week. Now, true, next month, there'll still be two commissioners on the dais, but they won't be able to do much. The commission needs at least four votes to make decisions.

The election commission is in this mess because Senate Democrats want to block one of the three recess appointees - Republican Hans von Spakovksy. President Bush appointed him to the FEC from the Justice Department where he'd helped lead the administration's effort to promote voter fraud as a crime issue. Civil rights groups say his role at Justice disqualifies him from overseeing any sort of election law.

Wade Henderson is president of the Leadership Conference on Civil Rights, a broad coalition that is lobbying against von Spakovksy.

Mr. WADE HENDERSON (President and CEO, Leadership Conference on Civil Rights): We think that protecting the voting rights of all Americans is not a partisan issue; it's a national issue. And we demand that he be evaluated on the merits and not on his political ties.

OVERBY: With the civil rights groups mobilized against Von Spakovksy, senator and presidential candidate Barack Obama put a hold on his nomination. Republicans say the Senate can hold a single upperdown vote on all three recess appointees - Von Spakovksy and two Democrats - but they won't allow separate votes on each.

So if three commissioners go away and the remaining two can't make any formal decisions, should anyone care?

Mr. MARK ALAISE(ph) (Campaign Finance Lawyer): Look, the rules matter.

OVERBY: Campaign finance lawyer Mark Alaise says that even politicians who oppose the very idea of campaign finance laws still have to work with the commission.

Mr. ALAISE: It will not have the kind of direct impact of there being no ads on television, but it does mean that the political campaigns will be operating in an environment where the regulator is not capable of offering guidance, issuing new rules or taking enforcement actions against them if they break them.

OVERBY: It also means trouble for those presidential candidates who have applied for public financing. The commission can certify the first payments this month, but after that, it's up to the next batch of commissioners - whenever they arrive.

David Lewis, an assistant professor of politics at Princeton, has studied presidential appointments in the agencies. He says this isn't the first time a regulatory agency has ground to a halt, but still…

Professor DAVID LEWIS (Politics and Public Affairs, Princeton University): This is a pretty bad case. Is it a death spiral? Well, it depends on whether you think that something new is going to be done on campaign finance. And the only thing that I would see, you know, the FEC being sort of terminated and redone - and I just don't see that happening.

OVERBY: It's possible that Democratic and Republican senators will settle on a deal before time runs out. But if they haven't found the goodwill to write a budget for the government for this year, how are they going to compromise on three commissioners for an agency that nobody likes?

Peter Overby, NPR News, Washington.

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