Posted July 6, 2007 by J. Gerald Hebert

Hans von Spakovsky and the So-Called “Package Deal”

In prior postings on this blog and in a letter to the Senate Rules Committee, I have made it very clear that I oppose Hans von Spakovsky’s nomination to be a commissioner on the Federal Election Commission.   It makes no sense to me that someone who has devoted most of his career to suppressing minority voting rights and who has used the machinery of the Justice Department to advance a partisan agenda (arguably a violation of federal law) should be rewarded with an appointment to a federal agency, particularly one that oversees important laws that affect our elections.  

One of the things I keep hearing about the nomination of Hans von Spakovsky is that he’s part of a so-called “package deal”.  Four nominees to the Federal Election Commission are now before the Senate Rules Committee, and reportedly they all have to be voted up or down together, as a package. 

First off, this seems absurd to me.  After all, the Senate Rules Committee has the obligation under federal law to ensure 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).  So if, hypothetically, we discover one of the nominees lacks integrity, has exhibited tremendous bias in his prior positions, has shown terrible judgment, and has no remotely relevant experience, is the Senate Rules Committee bound to confirm that person because they are part of a package deal?

Second, there is precedent for one political party’s nominee being pulled from a “package deal”.  The Reagan White House blocked a Democrat (Tom Harris) from being reappointed to the FEC.  Harris’ term expired in '85, and the battle between the White House and the Senate Democrats raged on for about a year and a half.  In 1985, the White House had recess appointed Tom Josefiak to replace Frank Reiche, and Josefiak's recess appointment was about to expire in the Fall of '86.  The White House was facing an awkward situation where the Democrat Harris could simply hold over, and Josefiak would be booted off the FEC leaving the Republicans with only two commissioners.  So the Reagan White House made it known that Harris would not be reappointed.  And the Democrats refused to recommend anyone else. 

As The Washington Post reported at the time:

"The White House and Senate Democrats are in a standoff over a key appointment to the Federal Election Commission.  The Democrats want President Reagan to reappoint Commissioner Thomas E. Harris to a third term.  And traditionally, presidents have honored the choice of congressional Democrats for a Democratic seat on the FEC. 

"But Reagan is balking at Harris.  Congressional liaison Max L. Friedersorf informed Senate Minority Leader Robert C. Byrd (D-W.V.) on July 12 that Reagan would not reappoint Harris, but promised a nominee of ‘impeccable Democratic credentials,’ congressional sources say."  ( The Washington Post, August 2, 1985, at A17).

Meanwhile, Tom Harris announced privately to the Senate Democratic leadership that he wanted to retire.  The Democrats and the Reagan White House then were able to broker a deal:  Josefiak, the Republican, would get nominated for a full term and the Senate Democrats would get whomever they put forward (as long as it was not Tom Harris).  The Democrats chose Scott Thomas, who served as an FEC Commissioner from 1986 to 2006.  Thomas is now in private practice in Washington, DC at the law firm Dickstein Shapiro, LLP. 

Just as the Democrats were forced to pull Harris’ reappointment, so too can the Democrats in the Senate tell the Bush White House that the nomination of Hans von Spakovsky needs to be withdrawn and he can be replaced with another nominee.  The Senators are under no obligation to accept the package of nominees in toto; there’s precedent for one party not accepting the appointment of a person from the other party; and any Senate Democrat who claims they have no choice in the matter is simply wrong.    The von Spakovsky’s nomination is one worth fighting about and there can be no hiding behind the so-called “package deal”.