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Posted February 20, 2007 by J. Gerald Hebert

“So exactly where were you, Hans von Spakovsky, on the nights in question?”

A number of Federal Election Commissioners will face confirmation hearings before the Senate Rules Committee this year, but one of them deserves particular attention.  The politically-expedited career of Commissioner Hans von Spakovsky, both as a recess appointee to the FEC and previously as an attorney at the Department of Justice, warrants careful scrutiny by the Committee.  The record that has already developed about von Spakovsky is a disturbing one for an individual charged with enforcing the nation’s election laws.  

For over twenty years (1973 to 1994), I served as a federal prosecutor of civil rights violations.  I look back on my twenty plus years of experience as a Department of Justice attorney and am grateful for the many opportunities I was afforded by my supervisors and colleagues to become a competent trial attorney.  Whether competency resulted from those opportunities I leave to others to decide, but I am confident that our work in the Civil Rights Division over those years changed our nation in a profound way, and for the better.  And I feel fortunate to have played a part.

The vast majority of my DOJ colleagues were professionals with unquestionable integrity who worked hard to enforce laws in an even-handed way.  As I worked my way up the chain of command during my time there, I would find myself in meetings with high ranking DOJ officials, including on occasions the Attorney General and Solicitor General.  And whether the Attorney General was William French Smith or Janet Reno, or the Solicitor General was Robert Bork or Drew Days, I always left the meeting feeling good that our discussion of cases turned entirely on the law and the legal doctrines we sought to either protect or develop.  In other words, the cases and issues were discussed in legal terms, and politics or partisan considerations were not discussed.

Avoiding a discussion of political issues in the context of enforcing the Voting Rights Act (VRA) can be tricky business.  After all, voting rights cases are by their nature cases about politics and the allocation (or lack of it) of political representation to racial and language minority groups.  Enforcing the Voting Rights Act often results in significant political change within communities.  When a VRA matter involved the redistricting of a state senate, state house, or Congressional seats, the political stakes of DOJ approval or rejection were high for the communities involved.  But as best I could tell, the political ramifications never seemed to matter much to the DOJ decision-makers.  That’s not to say career professionals and political appointees always agreed about how to enforce the law in a given situation or whether a redistricting plan was worthy of approval under the Voting Rights Act.  But rarely, if ever, was a decision to enforce the Voting Rights Act made solely or even in part on the basis of political considerations.

That is why it was so alarming for me to discover evidence that the Justice Department’s approval of a Texas congressional map in late 2003 was based on political ideology and not based on the merits of whether the plan discriminated against minority voters.  When the Texas congressional re-redistricting plan pushed through the Texas Legislature by ex-Congressman Tom DeLay in 2003 was sent to DOJ for approval (as required by the Voting Rights Act), over half a dozen career professionals unanimously concluded that the plan discriminated against African American and Latino voters across the State.  Unfortunately for minority voters in Texas, these career professionals were overruled by political appointees in the Civil Rights Division of the Justice Department.  The Washington Post first broke this story in December 2005, when the unanimous recommendation of the DOJ career professionals was provided to the press. 

The evidence that has become public since then demonstrates that the decision to overrule the career professionals was made purely based on politics by a number of political appointees in the Department of Justice, including Hans von Spakovsky—who President Bush later rewarded with a recess appointment to the Federal Election Commission.[1]

So how do we know this?  Put aside the fact that Republicans in Texas (including ex-Congressman Tom DeLay) boasted about how the plan was driven by one purpose:  to knock Democratic Members of Congress out of office and have them replaced with Republicans.  As Tom DeLay put it at the time: “I am the Majority Leader and I want more seats.”  I represented nearly all of the Texas Democratic Members of Congress in this matter back in 2003 and we knew that if the career professionals were allowed to do their job, they would find, as we had concluded, that the plan violated the voting rights of minority voters throughout the State.      

I admit that I had my doubts that raw partisan politics could be kept out of the Justice Department’s decision.  But I was hopeful, because I had witnessed first-hand for over twenty years the institutional concerns that career and political staff alike had shown at DOJ for enforcing the law regardless of the political consequences of the decision.  Indeed, prior to the Texas re-redistricting plan approval in 2003, the political staff and the career professionals agreed most of the time on the position the Government would take in enforcing the Voting Rights Act, regardless of whether the outcome helped Republicans or helped Democrats.

This is not to say that there was never any disagreement; but those differences were based on the interpretation of the law and not on something irrelevant, like partisan consequences.  But when there were differences of opinion between the career staff and political appointees, and again the instances of disagreement were the exception not the rule, it had been a consistent practice in the Civil Rights Division for the political appointees to write a memorandum of some kind explaining their position.  These memos were useful to the career staff, I might add, because they gave direction to the staff and explained the basis for the differing legal interpretations.  Career staff would tailor the next recommendation or case to meet the legal interpretation, or perhaps provide additional legal analysis in order to seek a reconsideration of the political appointees’ legal interpretation.  Most of the time, if there was a difference of opinion between the career staff and the political appointees, it occurred in cases where the career staff members themselves were divided on the issue.  It rarely happened that the political appointees overruled a unanimous recommendation of the Voting Section staff—in fact, I recall this happening only once, for example, in my twenty plus years of DOJ experience.  The point of all this is simple: political appointees usually accepted the recommendations of the career staff; sometimes questioned and debated the bases for decisions in close or controversial cases; and in cases where the political appointees disagreed with the career staff or felt that certain limits should be imposed, they reduced their comments to writing for the benefit of both.  This was true even in the tumultuous Reagan years. 

In DOJ’s Texas re-redistricting decision, however, neither von Spakovsky nor any of the other political appointees wrote any memos stating their reasons, according to the DOJ staff members who handled that matter.  That is hardly surprising.  After all, what would the political appointees have written?  “We are approving this plan even though it violates the Voting Rights Act and harms minority voters because it will help Republicans and Mr. DeLay”?  The fact that the current Supreme Court invalidated the plan in part on Voting Rights Act grounds speaks volumes about the extent to which the re-redistricting plan harmed minority voters.

DOJ lawyers, many of whom have now left the Department, have informally told me that von Spakovsky played a central role in the decision to approve the Texas plan.  This was confirmed in a recently published book on the Texas redistricting case entitled “Lines in Sand: Congressional Redistricting in Texas and the Downfall of Tom DeLay by Steve Bickerstaff.  Bickerstaff writes:

“The political appointees at Justice controlled how the department would handle the decisions surrounding Texas redistricting, and none of them with any ambition  to remain active in this Republican administration or in the Republican Party could dare allow any departmental action to delay or to block it.  Loyal service  would be rewarded. Hans von Spakovsky, who led the battle within Civil Rights Division to approve the Texas redistricting in 2003, was appointed by President Bush to the Federal Election commission in 2006.  The appointment was an interim appointment not requiring U.S. Senate confirmation.”

Joseph Rich, the Justice Department’s Voting Section Chief at the time of the 2003 decision to approve the Texas plan and who dealt with von Spakovsky on the Texas matter, read the assertions of political interference at DOJ in Bickerstaff’s book and wrote: “Lines in the Sand accurately portrays how the Department of Justice’s enforcement of the Voting Rights Act has been seriously politicized and how this politicization gravely endangers the full and fair protection of voting rights in this country.” 

These allegations deserve a full airing at von Spakovsky’s confirmation hearing before the Senate Rules Committee, and certain questions should be asked and answered.  Surely von Spakovsky has some explaining to do about his role in the Texas case and other matters that he handled at DOJ where he helped to override career attorney recommendations about enforcing the Voting Rights Act.  Rules Committee members should ask why von Spakovsky broke Department precedent and failed to produce any written justification of the decision to overrule the staff’s recommendations in the Texas matter.  Also, did von Spakovsky communicate with Tom DeLay or any of the Republicans at any point during the 2003 re-redistricting process in Texas?  Were there any communications between von Spakovsky and Republican leaders in Texas (or with DeLay and any of his staff or cohorts) when the Texas plan was before DOJ for approval?  If so, what was discussed?  Did von Spakovsky talk to anyone at the White House, including Karl Rove, about the Texas plan in 2003?  

Another area of inquiry that the Senate Rules Committee should pursue when they take up the von Spakovsky nomination is his involvement in approving a voter ID bill in Georgia.  Here again, while at DOJ, he ignored the near unanimous recommendation of the career staff.  This time, von Spakovsky overrode their recommendation to gather more facts and take the time required to study the legal implications of the controversial law.  After von Spakovsky and the other political appointees rammed through approval of the Georgia voter ID bill, a federal court invalidated the law on the grounds that it operated as a poll tax and was discriminatory!  And to make matters worse, von Spakovsky played an active role in DOJ’s consideration and eventual approval of the Georgia voter ID bill - while conveniently failing to acknowledge or disclose that his mind had already been made up to approve the approach before the DOJ’s consideration of the Georgia bill had even begun.  As the Washington Post reported in 2006:

"When he was a senior lawyer in the Justice Department's Civil Rights  Division, Hans von Spakovsky played a central role in approving a controversial Georgia voter identification program over the objections of staff lawyers. But now, after leaving Justice for the Federal Election Commission, von Spakovsky has acknowledged writing a law review article that endorsed photo identification, which was Georgia's approach, before the state's proposal was even submitted to Justice for review. He also took the unusual step of using a pseudonym, 'Publius," in publishing the article, which appeared in the spring 2005 issue of the Texas Review of Law & Politics." The article further notes: "The article's appearance on the FEC Web site was first noted last month by Loyola University law professor Rick Hasen on his Web site, Its sudden disappearance was reported earlier this week by the Atlanta Journal-Constitution."

Official's Article on Voting Law Spurs Outcry, Washington Post, Dan Eggen, Thursday, April 13, 2006; Page A19.

When von Spakovsky’s controversial role in the Georgia voter ID case was subsequently disclosed, it prompted an ethics complaint from the ACLU attorneys involved in the case.  The attorneys took the unusual step of writing to the DOJ ethics office, alleging that the article authored by von Spakovsky showed he had already made up his mind on the issue and that his attempt to hide his views may have violated Justice Department guidelines.  Associate Director of the ACLU’s Voting Rights Project, Neil Bradley, wrote: “There appears to have been an intentional desire to prevent the public and, in particular, advocates with business before the Voting Section, from knowing the views of one of the senior officials involved.”  DOJ has failed to disclose whether it has taken any action regarding the ACLU’s ethics complaint involving von Spakovsky.

As noted above, despite von Spakovsky’s sordid past at the DOJ, President Bush used a recess appointment one year ago to make him a Federal Election Commissioner.  This recess appointment avoided a Senate confirmation hearing.  As a member of the Federal Election Commission, von Spakovsky is one of six individuals charged with enforcing our nation’s campaign finance laws, just as he had been responsible for enforcing our civil rights laws while at DOJ.  von Spakovsky has not followed up his controversial DOJ tenure with exemplary public service at the FEC.  In his first year on the FEC, von Spakovsky has made clear that he detests many of the campaign finance laws that he took an oath of office to uphold and enforce.  

It is fair to say that since his appointment to the FEC, von Spakovsky has consistently taken positions designed to avoid the enforcement of existing campaign finance laws.  In that regard, he is playing the same role at the FEC that he played as a political appointee at DOJ.[2]

von Spakovsky’s recess appointment to the FEC is now expiring, and President Bush has formally nominated him to the FEC, which means he will have to undergo confirmation hearings in the Democratically-controlled Senate Rules Committee.  I remain hopeful that now, finally, the extent of his involvement in playing politics with the VRA will be disclosed.  If he refuses to discuss either the Texas case or the Georgia case, his nomination should be rejected out of hand for that reason alone, as he will have failed to address the charge that he was far from even-handed in handling civil rights matters.   

But even putting aside his controversial tenure at DOJ, von Spakovsky’s performance at the FEC over the last year independently raises questions of whether he is worthy of Senate confirmation.  His comments at FEC meetings have often been caustic and extraneous to the issue at hand.  He has consistently scoffed at the spirit of campaign finance laws, thumbing his nose at the law as he seeks to help create routes of circumvention.  He even accuses those reformers who seek regulation of the role of money in our political process as attempting to take us back to the days of the Alien and Sedition Acts.  This is an easy accusation to make, and von Spakovsky has employed it a number of times, and it certainly is easier to attack those he disagrees with rather than to explain principled reasons for his own actions.

The Senate Rules Committee hearings will begin soon.  When they do, the American people have the right to know all the details of von Spakovsky’s roles in both the Texas and Georgia matters, and his handling of FEC matters as a recess appointee.  That record, if compiled, will make the vote on his confirmation quite easy.   

[1] I once saw a news article in which a DOJ spokesperson denied that von Spakovsky was a political appointee at DOJ(although the spokesperson didn’t deny he played a role in the TX re-redistricting plan).  The contention was that he had been placed in a career professional slot.  That is an absurd proposition.  von Spakovsky came into DOJ because of his political connections and unlike others who came in as political appointments, von Spakovsky was placed into an open slot in the Voting Section—a slot that ordinarily would have been filled by a career employee, not a political appointee.  Von Spakovsky did not go through the normal hiring process that career attorneys go through, and made it be known to career professionals in the Division that he was there because of his political connections.  Also, von Spakovsky reported directly to the political appointees (something other career attorneys cannot do).  So the distinction drawn by a DOJ spokesperson that von Spakovsky was not a political appointee just isn’t true.  What the Bush-Ashcroft Justice Department did was allow at least one more political appointee to enter the Civil Rights Division by assigning von Spakovsky to a position that would have normally gone to a career attorney.

[2]  To avoid future embarrassment in cases where political appointees overruled career staff recommendations made by DOJ attorneys in the Voting Section, the Department of Justice changed its four-decade-old policy following the Texas congressional plan and Georgia voter id bill cases.  No longer are career attorneys permitted to make recommendations to the political appointees.  That way, when the political appointees act contrary to law, they cannot be accused of overruling career professionals in their recommendations.  This policy change seems to stick to von Spakovsky like fly paper.  Since his arrival, the FEC has adopted a similar policy, no longer permitting the General Counsel to publish written recommendations regarding the preferred course of action for the Commission to take.  While it appears this new FEC policy may have had its original seeding before von Spakovsky joined the Commission, it did not fully blossom into a formal, if unwritten, policy until after von Spakovsky joined the Commission last year.

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