Posted June 11, 2007 by J. Gerald Hebert
The Bad FEC Commissioner
A letter I sent last week to the Senate Rules Committee on the nomination of Hans von Spakovsky to the Federal Election Commission elicited comment from Bob Bauer on his blog. Bob agrees with much of what I wrote regarding von Spakovsky’s elevation of politics above civil rights while at DOJ’s Civil Rights Division. But Bob notes that I did not devote much space to von Spakovsky’s tenure as a recess appointment as an FEC Commissioner. Bob notes that:
"Notably and somewhat surprisingly, Hebert does not devote much attention to von Spakovsky’s performance at the FEC. In this post, von Spakovsky has been a principal, not staff, and the decisions he makes are his alone as a Presidential appointee to an independent agency. If the questions that Gerry Hebert raises are ones of character, we should expect the same von Spakovsky at the FEC that Gerry found at DOJ, lacking to much the same extent in the necessary professional and personal virtues. And we would imagine that Gerry would care about the effect of those deficiencies on the campaign finance policy matters Gerry is now actively concerned with at the Campaign Legal Center."
First, let me state unequivocally that I am deeply concerned that, if he is confirmed by the Senate, someone with von Spakovsky’s lack of integrity and propensity to put politics at the top of every agenda item at the FEC will be shaping campaign finance policy. The fact is, much of what is wrong with the FEC is that it is comprised of political party hacks or party loyalists who vote their party line on almost every matter of real importance. With three Democrats and three Republicans making up the Commission, and it taking at least four votes to take action, the Commission deadlocks 3-3 on most important issues that could conceivably hurt their political party. As a result, the agency creates gaping loopholes in campaign finance laws and ends up undermining the law rather than enforcing it.
With that introduction, let me turn to von Spakovsky’s “performance” at the FEC over the last year.
Unfortunately, the FEC does not compile transcripts of their public meetings, so it is difficult to cite the many occasions on which Commissioner von Spakovsky has made statements reflecting his unreasonable interpretation of the law, and his hostility toward the task of implementing and enforcing those laws. But transcripts are available for a public rulemaking hearing that Commissioner von Spakovsky presided over; as are several written statements that he has published during his year and a half on the Commission. In reviewing these, I think it becomes rather clear that he falls far short of the standard required under Federal law that members of the FEC “be chosen on the basis of their experience, integrity, impartiality, and good judgment . . . .” 2 U.S.C. § 437c(a)(3).
Commissioner von Spakovsky’s lack of “integrity, impartiality, and good judgment”—as well as his general hostility toward our nation’s campaign finance laws and the Congress that enacted them—is illustrated by his name-calling during public FEC hearings, referring to supporters of campaign finance law enforcement as the “Incumbency Protection League” or “IPL” for short. At a June 25, 2006 public hearing, for example, Mr. von Spakovsky asked a well-known opponent of campaign finance regulation, Stephen M. Hoersting (Executive Director and Co-Founder of Brad Smith’s Center for Competitive Politics):
"COMMISSIONER VON SPAKOVSKY: So you wouldn't have a problem with us, instead of constantly referring to reformers, to maybe changing that to the IPL, the Incumbency Protection League?
MR. HOERSTING: I would have no problem with it. We're working on it. I'm a one man band right now, but we'll get there."
Transcript of the FEC Public Hearing on Coordinated Communications, Wednesday, January 25, 2006, at 238–39.
Commissioner von Spakovsky’s denial of political reality and lack of “good judgment”—in an effort to justify not enforcing long-standing federal campaign finance restrictions on coordinated spending—is aptly illustrated by his outrageous claim that people don’t pay attention to campaigning more than 120 days before the election, so there’s no reason to regulate campaign finance activity more than 120 days before an election. (Of course, it is obvious that the 2008 presidential candidates have been campaigning since January 2007, and voters are paying attention.) But here are von Spakovsky’s comments on the subject a year ago, shortly after he was named as a recess appointment to the FEC. They illustrate, at best, a denial of political reality:
"COMMISSIONER VON SPAKOVSKY: Now I have a question for the whole panel and it's this. Another issue that keeps being raised with us is the IPL [again, von Spakovsky’s derogatory “Incumbency Protection League” reference to those seeking enforcement of campaign finance laws] is very worried about ads occurring outside the time limit, whether it's 120 days or whether we shorten it to a 60/30 rule. What I wonder about this is, all the data I've seen, including polling data, indicates that the average citizen doesn't pay attention to political races and elections until shortly before the election, and that even if a rule like this were to push some of these ads outside of this time period, it really wouldn't matter because, frankly, while the TV stations that get the ads might be happy for the money, it's just going to be burned money, wasted money for the campaigns because people that far out from the election aren't really paying attention to it, and I wonder whether you agree with that assessment?"
Transcript of the FEC Public Hearing on Coordinated Communications, Wednesday, January 25, 2006, at 239. It should be pointed out that von Spakovsky’s absurd belief that voters don’t pay attention to campaign ads more than 120 days before the election was shared by all of his fellow Commissioners who voted to approve a new “coordination” rule. That interpretation has landed the FEC in court once again.
Commissioner von Spakovsky’s hostility toward enforcing our nation’s campaign finance law is further illustrated by his repeated comparison of campaign finance regulation to the Alien and Sedition Acts enacted at the turn of the Nineteenth Century—Acts that unconstitutionally outlawed speech critical of the President. That von Spakovsky would compare current efforts to regulate campaign finance matters to this Act is an outrage. (The Alien and Sedition Acts were laws passed in 1798 which proponents claimed were aimed at protecting our new Government from seditious attack by our enemies, but critics claimed were really designed to prevent criticism of the Administration.) The reformers’ position would not place any limits on an individual's freedom to spend any amount of money criticizing an incumbent (or the Government). Nor do reformers limit criticism of legislation in harsh terms, even using unlimited corporate or union money. The Alien and Sedition Acts, therefore, have nothing to do with large, coordinated expenditures for political ads, a coordination that has the huge potential of corrupting candidates and officeholders with whom the expenditures are coordinated. Moreover, the U.S. Supreme Court has long held that such coordinated expenditures could constitutionally be regulated. Notwithstanding this legal framework, consider the following exchange between von Spakovsky and legal counsel to the campaign finance organization Democracy 21, Don Simon:
"COMMISSIONER VON SPAKOVSKY: Well, that's very interesting, Mr. Simon, because 2008 will be the 200th anniversary of the passage of the Alien and Sedition Act, and one of the people who was convicted and fined $100 under that Act was a man from New Jersey named Luther Baldwin, who said in a presidential election year that he wished a wad of the presidential saluting cannon might hit Adams in the ass. And you're basically telling me, I think, that we should reconstitute those acts in a way to restrict the political speech of individuals?
MR. SIMON: Well, again, the premise of the hypothetical is that we're talking about a coordinated communication, so presumably, the conduct standard is that this communication was coordinated with the political opponent of the President, the candidate running against the President or the political party of that candidate, and if there is that kind of coordination in an election year with the opponent of the candidate referenced in the election, I think the Supreme Court doctrine is pretty clear, that can be considered as a coordinated expenditure, and the doctrine is also clear that it can be considered, therefore, as an in-kind contribution, and the doctrine is also clear that corporations and labor unions are prohibited from making contributions to political candidates or parties."
Transcript of the FEC Public Hearing on Coordinated Communications, Wednesday, January 25, 2006, at 52–55.
And here’s another nonsensical comparison of campaign finance law regulation of coordinated spending to the Alien and Sedition Acts, from an exchange between Commissioner von Spakovsky and the Campaign Legal Center’s Paul S. Ryan, wherein von Spakovsky would not even permit Ryan to answer the question posed:
"COMMISSIONER VON SPAKOVSKY: Well, I hate to do this to you, Mr. Ryan, but does it give you any second thought at all that, in fact, if we were to fine an organization for doing that, we would be repeating behavior that occurred 200 years ago, when Republican Matthew Lyon became the first person with the dubious honor to be fined $1,000 under the Alien and Sedition Acts because, due to his opposition to going to war with France, he criticized the President by saying he was continuing to grasp for power?
MR. RYAN: Well, he would not be, because he would be subject to the character or qualifications or fitness for office test, which I explicitly stated would not be subject –
COMMISSIONER VON SPAKOVSKY: I know, you just told me that we should fine someone under that circumstance, now you're backing away from that."
Transcript of the FEC Public Hearing on Coordinated Communications, Wednesday, January 25, 2006, at 193–97.
This grandstanding and a demonstrated lack of understanding the nuances of campaign finance law are bad enough, but there is more. Here are some controversial incidents where Commissioner von Spakovsky voted not to enforce federal campaign finance restrictions.
Recently, in the context of audit reports of the Bush-Cheney and Kerry-Edwards 2004 presidential general election campaigns, the Commission split sharply on the legality of an allocation scheme employed by the candidates and their parties to evade the presidential public financing program spending limit and the coordinated party spending limit. In March of this year, Chairman Lenhard, along with Commissioners Weintraub and Walther published a statement arguing that the Bush-Cheney committee received $41 million in excess in-kind contributions from the RNC, violating both the contribution limit and the presidential spending limit. Commissioner Weintraub published an even more strongly worded statement elaborating on the issue. Commissioners von Spakovsky and Mason, however, voted against finding that a violation had occurred and published a statement explaining their position. Without the necessary four votes to find a violation, the Lenhard, Weintraub and Walther could do nothing and the $41 million violation went unpunished. Then in May, the Commission again split with respect to whether the Kerry-Edwards campaign had likewise violated federal law using the same “hybrid ad” scheme that resulted in $11 million in illegal contributions to the presidential ticket. Commissioners Mason and von Spakovsky again published a statement explaining their position.
In April of this year, Commissioner von Spakovsky was alone in his vote to allow candidate campaign committees to off-load their fundraising costs to contributors, without subjecting such costs to the contribution limits. Under von Spakovsky’s theory, a contributor could make the maximum $2,300 contribution to a candidate, plus pay the candidate’s fundraising costs associated with obtaining that contribution. The Commission’s other four members (Lenhard, Weintraub, Walther and Mason) voted to deny the request by a corporate candidate vendor to charge contributors rather than candidates for the services they provide by contract to the candidates. The matter was the Atlatl “Advisory Opinion” (2007-04).
The FEC has not been that active over the last year, and thus von Spakovsky’s brief year and half tenure at the FEC has not yet produced the fertile ground that his 3-year stint at DOJ produced. But even by the FEC Commissioner standards, which admittedly I hold in low regard, von Spakovsky’s limited record shows he is unsuitable for confirmation. Add to this what we already know of his DOJ shenanigans, see here and here for my prior postings on this topic, and it is not a close call by any means.
What a perversion it is that someone with a history of undermining democratic values would seek appointment to an agency that enforces laws he finds abhorrent. Whether one agrees with Mr. von Spkovsky’s views on campaign finance laws or not, it is clear he lacks the “experience, integrity, impartiality, and good judgment” that would justify Senate confirmation. Putting Hans von Spakovsky on the Federal Election Commission makes about as much sense as putting Jack Abramoff in charge of government ethics.
 Available at: http://www.fec.gov/members/lenhard/speeches/statement20070321.pdf.
 Available at: http://www.fec.gov/members/weintraub/audits/statement20070322.pdf.
 Available at: http://www.fec.gov/members/von_Spakovsky/speeches/statement20070322.pdf.
 Available at: http://www.fec.gov/members/von_Spakovsky/speeches/statement20070531.pdf.
 All of the documents pertaining this advisory opinion proceeding, including Commissioner von Spakovsky’s dissenting opinion, can be found here: http://saos.nictusa.com/saos/searchao.