Posted February 22, 2007 by J. Gerald Hebert

More Thoughts on the Whereabouts of Hans von Spakovsky on the Nights in Question

Bob Bauer has offered up a response to my blog piece on the nomination of Hans von Spakovsky to the FEC.  As usual, Bauer makes a number of good points and offers up a wide variety of food for thought.  But, as is often the case in his critiques of anything coming from what he refers to as the “reform community,” Bauer seems to have missed or misinterpreted a number of points.  To be sure, on campaign finance matters, we share little common ground.  On matters involving the elevation of political views over those of protecting minority voters though, I would have expected, or perhaps hoped, to find more commonality than Bauer allows.  But let me start by noting a point or two on which we either agree or at least with which Bauer does not appear to actively disagree. 

First, Bauer does not appear to quarrel with the record evidence of von Spakovsky’s “complicity in Bush Administration DOJ’s disregard, then curtailment, of the authority of its Voting Rights Section professional staff.”  In fact, he even agrees the Senate Rules Committee should ask von Spakovsky (and other nominees) close questions about their actions or inactions.  After all, Bauer notes, that “is what the Rules Committee has the jurisdiction to do.”

Jurisdiction though and action can take very different courses, particularly when it concerns Congressional oversight of the current Administration, and that was a primary motivation behind my earlier blog entry.

However, in the cases where Bauer disagrees with me, it appears to stem from a basic misunderstanding of my points.  For example, Bauer states that I “argue[] for the professional standing of staff and believe[] that without good and written reasons, their recommendations should stand,” though he admits that he agrees with their recommendations.  Bauer also writes:

“So to ask von Spakovsky his views on this record seems unexceptionable, well within the range of questions reasonably asked of a Presidential nominee with a prior record in public service.  Hebert wants to go further, however.  He wishes to put the question with the right answer, about the special place of “professional staff,” already well established and ready for use against von Spakovsy."

That is not the case at all.  I do not think staff recommendations should stand even in the absence of “good and written reasons.”  Nor do I believe that the questions posed to von Spakovsky should focus on “the special place of ‘professional staff.’”   I do believe, however, that those who have taken an oath of office to uphold the law, as von Spakovsky did at DOJ and the FEC, should be held accountable when the evidence suggests that they failed to do so.  If I were on the Rules Committee, I would question him not about the pros and cons of the staff recommendations.  Rather I would focus on the very points Bauer agrees are important: that while at DOJ, von Spakovsky was an active participant “in the Bush Administration’s corruption of the historic, nonpartisan mission of the Voting Rights Section.”  But von Spakovsky’s failure to set forth his views contrary to long-standing DOJ practice sheds light on the substantive issue that Bauer believes warrants Rules Committee inquiry.

 

Mr. Bauer makes this observation: “The Bush Administration is at fault less for its disagreements with staff, or even its wish to have political appointees make the final calls, and more for the management of that conflict.  On the face of it, as presented in press accounts and other snippets of publicly available information, the Administration has acted in ways that unavoidably invited the suspicion of political manipulation of the law, such as in the mere 24 hours apparently needed to reject the staff recommendation and pre-clear the Georgia photo ID law.” 

I believe Bauer misses the point in saying that von Spakovsky shouldn't have to issue a written explanation when disagreeing with DOJ staff.  In my view, von Spakovsky’s failure to follow established procedure at DOJ—which was to issue a written explanation when disagreeing with staff—was not followed in either the Texas or Georgia case. The fact that von Spakovsky failed to follow ordinary procedures suggests that his decisions were political and unsupported by facts and the law.  Bauer’s example of how quick von Spakovsky’s decision was in the Georgia case (again overruling a near unanimous DOJ staff) wouldn’t even be irrelevant if von Spakovsky had agreed with a unanimous staff recommendation.  It is precisely because von Spakovsky overruled the staff that the haste is relevant and unseemly, or proof of a rush to a political end.  All of these matters cry out for a full airing in the Rules Committee during the von Spakovsky confirmation hearing.

Let me specifically address the Texas case.  The fact that political appointees, including von Spakovsky, deviated in that case from a long tradition of recording in writing the reasons for their disagreement over the career staff recommendation suggests that they acted for invidious purposes.  The fact that the effect of their decision was to harm minority voters for the benefit of Anglo Republican voters is highly probative that the decision to approve the plan lacked principled moorings.  And the fact that the plan helped Republican officeholders and targeted only Democratic officeholders is further probative evidence that the decision to approve the plan was illicit.  We now know completely the details of why the entire professional staff of the Voting Section found the Texas re-redistricting plan illegal.  What we don’t know, and what the American people are entitled to know, is why in the face of these compelling facts and arguments, the contrary decision was reached.  To date, neither von Spakovsky nor any other political appointee at DOJ who handled the Texas matter, has ever had to explain their actions.  My point is simply this: now that von Spakovsky’s nomination to the FEC will require a hearing, it is time to require him to answer for what he has done and what he failed to do while at DOJ. 

Finally, Bauer suggests that “[p]erhaps Hebert should have counted to ten, and then argued the specific decisions on which the Administration, on the merits, was wrong.”  My Supreme Court brief in the Texas congressional case and the numerous reasons set forth in the Voting Section staff recommendation (an eighty page memorandum) provide ample reasons why the Administration was wrong to give Voting Rights approval for a redistricting plan that plainly violated the Voting Rights Act.  It is time for von Spakovsky to provide answers, and the nomination hearing creates an opportunity for the Rule Committee to demand that he do so or face the consequences of rejection.

 

In sum, my reasoning for urging the Rules Committee to ask von Spakovsky hard questions about his role in the Texas and Georgia cases is not premised on a defense of the staff or their recommendations.  Rather, it is about demanding answers from federal officials who choose to deviate from the procedural norm and the implications of those procedural departures.  Thus, it is critical that the Rules Committee ask von Spakovsky about his role in the Texas matter and his failure to record any reasons for his views.  I believe that bringing out the truth will reveal a great deal about both the corruption of the Voting Section’s decision on the Texas matter and von Spakovsky’s lack of qualifications to sit as an FEC Commissioner.  At the end of the day, what it comes down to for me is this: a desire to see the Senate Rules Committee demand answers for the millions of minority voters in Texas who lost an effective opportunity to participate in the political process as a result of von Spakovsky’s failure to enforce the Voting Rights Act.  And on that point, at least, I am hopeful that Bauer and I fully agree.