The White House unveiled three new nominations to the Federal Election Commission on Tuesday, but the new names are unlikely to break a Senate confirmation deadlock that has paralyzed the campaign law enforcement agency since January.
This could be especially bad news for presumptive Republican presidential nominee Sen. John McCain of Arizona, who needs the commission to approve public financing for his fall campaign. The Senate's inaction has left the six-seat commission with just two members — it needs four to approve anything.
The problem isn't with the new nominees: veteran Republican campaign finance lawyer Donald McGahn; Caroline Hunter, a member of the Election Assistance Commission who was formerly with the Republican National Committee; and Cynthia Bauerly, an aide to New York Democratic Sen. Charles Schumer.
An aide to Senate Minority Leader Mitch McConnell of Kentucky says the trio could win easy Senate confirmation. "It shouldn't take long," the aide says. "They're all known quantities."
The key issue is whether the Senate will confirm Hans von Spakovsky, whose nomination has been pending since 2005. Von Spakovsky served in 2006 and '07 as a recess appointee, without Senate confirmation.
Before his stint at the FEC, von Spakovsky was a political appointee in the voting rights section of the Justice Department, where he worked forcefully for voter identification laws considered anathema by civil rights advocates. Democratic presidential hopeful Sen. Barack Obama of Illinois led the opposition to von Spakovsky's confirmation, and the tight-knit coalition of civil rights groups made his rejection a prime goal.
Thus, it's hard to imagine Senate Democrats caving on the von Spakovsky nomination six months before the presidential election. "There's no way Hans is making it through," says one lawyer close to the nominating process who requested anonymity because his practice involves FEC matters.
But it's just as hard to picture McConnell and the GOP confirming all of the other nominees, which would give Democrats a 3-to-2 edge on the commission.
If McConnell tries to knock out a Democratic nominee tit-for-tat, Democrats won't accept a four-member commission, says Jim Manley, a spokesman for Senate Majority Leader Harry Reid of Nevada.
Only one current FEC commissioner, Democrat Ellen Weintraub, remains in place. Democrats also stand by 2005 nominee Steven Walther, who has ties to Reid.
But the current FEC chairman, David Mason, has been left out in the cold, his renomination dropped without explanation by the White House.
Mason has had an edgy relationship with some GOP leaders, including McCain. This spring, the commission chief caused a furor by declaring that if McCain wants to withdraw from the federal matching funds program for the primaries, he'll need approval from the FEC — which currently can't even consider it.
McCain — known as a fierce advocate for tighter campaign finance laws — applied for matching funds last year, when his campaign was running on empty. But after the FEC ruled that he qualified, he withdrew, saying he didn't need public funds. Instead, he applied for a bank line of credit, and created a new gray area of campaign finance law. The loan document cites as collateral the likelihood that McCain could requalify and collect federal funds. If that amounts to using federal funds, it would place McCain in the system, bound by spending limits he has already exceeded. It's Mason's claim that the FEC, not McCain, has the authority to make that decision.
Without a quorum, the commission has been unable to act on a steady stream of complaints against independent political groups, which are pushing the legal envelope as others did four years ago.
But the biggest decision it's unable to make right now involves McCain's public funds for the general election campaign. The grant would exceed $84 million, money that McCain would seem to need badly. He had raised just $76.7 million for the primaries as of March 31, compared with $189 million for Sen. Hillary Clinton (D-NY) and $234.7 million for Obama. Either Democrat is considered likely to forego public money in the fall.
The window for breaking the Senate deadlock will stay open until the Independence Day recess. After that, the Senate will be out of session much of the time, and when senators are in town, Democrats will be in no mood to help McCain finance his White House bid.