Politics could cloud election panel's work

WASHINGTON -- The six-person Federal Election Commission, which enforces campaign-finance laws, is entering the presidential election season with three temporary commissioners who have not been confirmed by the Senate, two commissioners whose terms have expired but who have not been replaced, and one vacancy.

As a result, most of the commissioners who are now passing judgment on campaign-finance fights will also be looking ahead to their own confirmation battles -- a process that threatens to intensify the politics surrounding an agency that was set up to resolve disputes over election rules in a bipartisan manner.

"This is symbolic evidence of how dysfunctional this agency is, when there is not one commissioner serving today under the normal process for appointing and confirming federal officials," said Fred Wertheimer , president of Democracy 21, a group that has frequently criticized the commission as failing to take sufficient steps to reduce the influence of money in politics.

The failure to confirm new commissioners is the result primarily of tie-ups in the Senate, where members of both parties have threatened to use the confirmation process to revisit controversial campaign-finance laws, according to congressional aides. Senate leaders, seeking to avoid a distracting battle, quietly allowed President Bush to make the temporary appointments while Congress was in recess.

Next month, however, Senator Dianne Feinstein , a California Democrat and new chairwoman of the Senate Rules Committee, plans to hold a hearing on the possibility of confirming four of the commission members.

They include the members who were given recess appointments in January 2006 -- Republican Hans von Spakovsky and Democrats Robert Lenhard, and Steven Walther -- along with Republican David Mason , whose six-year term expired in 2003, but who stayed on as a holdover and has now been nominated for a second term by Bush.

Election-law observers say they will be closely watching the hearings, which represent the first attempt by the Senate to confirm the agency's commissioners in seven years. But few are optimistic that the process will go smoothly. Senate procedures allow lawmakers of either party to block the agency's nominees whom they oppose, prompting retaliatory blocks by members from the other party.

Some of the anticipated fights are partisan. Democrats are expected to question von Spakovsky about his prior work as a voting-rights lawyer in the Justice Department's Civil Rights Division, when it approved a Texas redistricting map that favored Republicans. The map was later ruled illegal by the Supreme Court.

Other anticipated fights are ideological and cross party lines. Senators who support broad restrictions on campaign spending -- including John McCain, Republican of Arizona and Russ Feingold, Democrat of Wisconsin -- have clashed with lawmakers who say that campaign-finance limits are a violation of free speech.

"If gridlock blocks the appointments from going forward, that is a sign that the debate over the policies that this commission deals with has broken down, and we can't see the end resolution," said Edward Foley , an election law specialist at Ohio State University.

Congress established the Federal Election Commission in 1975 amid a wave of post-Watergate reforms intended to end corruption in the political process. The agency is charged with making regulations to enforce federal election laws, including limits on campaign donations and the disclosure of donors.

To ensure that its actions are bipartisan, the agency is supposed to have three Republicans and three Democrats. Congressional leaders usually recommend potential appointees to the president, though he has final discretion.

Campaign-finance activist groups have accused leaders of both parties of choosing commissioners who are reluctant to restrict the flow of political money. The agency also often deadlocks with 3 -to- 3 party line votes, and thus takes no action on complaints about alleged violations of election laws.

Such disputes intensified after the passage of the McCain-Feingold campaign finance law in 2002. It banned political parties from spending so-called "soft money" -- unrestricted money donated by corporations, labor unions, and wealthy individuals -- to influence elections.

But during the 2004 election, such "soft money" instead flowed to independent groups, including the liberal MoveOn.org and the conservative Swift Boat Veterans for Truth. Campaign-finance activists urged the commission to use its powers under election law to force all such groups to obey donation limits and disclosure rules. But the commission refused to make such a rule.

Fallout from the agency's decision in the dispute led to the three recess-appointments, Senate aides say. Party leaders on both sides of the aisle wanted to avoid a protracted fight with lawmakers such as McCain and Feingold over their choices for the agency. So Bush quietly made the appointments in January 2006 while Congress was in recess.

Another Senate-confirmed commissioner resigned in March, and the regular term of the last Senate-confirmed member of the agency, Democrat Ellen Weintraub , ended on April 30 . She is still serving as a holdover, awaiting the nomination and confirmation of a successor.

The commission's spokesman, Bob Biersack, said the problem of unconfirmed commissioners has not affected the agency's work. In recent months, he pointed out, the agency has collected hundreds of thousands of dollars in fines, mostly related to violations during the 2004 election. "It's true that it's unique in our history that we've been in this situation with all six seats" awaiting confirmation, he said. "But people carry on."

However, if the Senate fails to confirm any of the agency's commissioners this year, the three recess-appointed members will have to step down in December. For the agency to function, Bush would have to install four new temporary commissioners who would have to learn the process as major campaign issues for the 2008 election are heating up.

"There is a problem when there is a lot of turnover, because there is a learning curve associated with what's going on," said Richard L. Hasen , an election law specialist at Loyola Law School Los Angeles. "It's certainly a problem to have a lot of new commissioners coming in just as the 2008 election comes up."

<(Correction: Because of an editing error, a Page One story Wednesday on the Federal Election Commission incorrectly listed Senator Russ Feingold's party affiliation as Republican. He is a Democrat from Wisconsin.)

(Correction: Because of a reporting error, a Page One story May 9 about the Federal Elections Commission said the commission "often" has 3-3 votes about alleged election law violations. In fact, deadlock votes are not common, although they have occurred on several high-profile issues over the past decade.)