Posted September 29, 2006 by Paul S. Ryan

Where have you gone, Mr. Norton? A nation turns its lonely eyes to you.

Earlier today the office of the FEC’s General Counsel, Lawrence Norton, published two alternative draft advisory opinions in response to a joint advisory opinion request (AOR 2006-24) by Democratic and Republican party committees seeking permission to raise and spend soft money to pay recount and election contest expenses resulting from the upcoming November federal elections.

As detailed in an August 24 post to our blog, this is the third time since 2002 that the parties have asked the FEC the same question.  The previous two times, the parties yanked their requests at the last minute—after the Office of General Counsel (OGC) advised the Commission via recommended draft advisory opinions that parties are not permitted under BCRA to raise and spend soft money to fund federal election recounts.  The law has not changed since then, but several other things have.

For starters, three new Commissioners were appointed in January.  Perhaps the parties hope the new Commissioners haven’t had time to read the law and learn the history of this issue.

Also, it appears the Commission has instituted a new policy prohibiting their own non-political-appointee General Counsel and staff attorneys from advising the Commission on the law.  Whereas in 2002 and 2004 the OGC publicly recommended that the Commission adopt an advisory opinion making clear that BCRA prohibits party soft money fundraising for federal election recounts and election contests, today the OGC’s publication of alternative draft advisory opinions is not accompanied by any recommendation.  Instead, one draft concludes that parties may not use soft money for recounts and election contests, while the other draft concludes they may.

This apparent new “no career attorney recommendation” FEC policy has an eerie familiarity.  Earlier this year, the Justice Department got embarrassed when it was discovered that the career staff in the Voting Section had recommended that the Department block Georgia’s voter i.d. bill from approval under the Voting Rights Act.  It turns out the Voting Section chief and the political appointees overruled the career staff and approved the law anyway, for reasons that now appear to have been purely political.  All federal courts and state courts to thus far look at the merits of Georgia’s voter i.d. bill have declared it illegal, with one even declaring it a form of poll tax!  So what did the Department of Justice do in response?  Rather than stop its practice of playing politics with enforcement of the Voting Rights Act, it instead changed its thirty-year-old procedure of having the staff make recommendations on matters.  Interestingly, there is a common thread between DOJ’s Voting Section and the FEC—Commissioner Hans von Spakovsky.  Perhaps this seemingly new FEC policy is a carry-over from Commissioner von Spakovsky’s policy-making experience at the DOJ.

With no staff recommendations on matters, the political appointees at the FEC and the Justice Department don’t have to worry about being accused of playing politics when they overrule such recommendations.  And they don’t have to worry about the awkwardness of repeatedly having to explain to courts why they ignored the advice of their own attorneys.  But what’s the point of taxpayers paying career attorneys at these agencies if their knowledge and experience go unutilized?