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From the diaries -- kos)
As noted yesterday, the President has made three recess appointments to the Federal Election Commission -- Hans von Spakovsky (R), Steven Walther (D) and Robert Lenhard (D).
(Here's how it works: the FEC has six commissioners appointed by the president and confirmed by the Senate, and no more than three members can be affiliated with the same party. It takes four votes for the FEC to act. Before yesterday, there was one true vacancy, and three other commissioners were still serving despite expired terms. Two of those three are being replaced; the third, David Mason (R), will remain as an acting commissioner. As West Wing fans know, party leadership has strong input.)
Who are the new Commissioners?
- Hans von Spakovsky is probably best-known here already. He has been involved in all sorts of "voter integrity" issues on behalf of Republicans that would give many here pause, to say the least, plus the Texas redistricting.
- Steven Walther is a lawyer based in Reno whom Sen. Reid strongly recommended. He represented Sen. Reid during a recount of the vote after his narrow reelection victory in 1998, but does not appear to have campaign finance law experience.
- Robert Lenhard is an attorney for AFSCME. While there, he helped challenge the constitutionality of McCain-Feingold in the courts. His wife, Viveca Novak, is the Time Magazine journalist most recently involved in the Rove-Libby situation, but he was mentioned for this slot months before that all happened.
Will they be good commissioners? I have no idea. And that's the problem. These nominations were just announced in mid-December, and there have neither been hearings nor the oppportunity for hearings nor anyone saying that they didn't want to hold hearings for these nominees.
Under the recess appointment, they get to serve until the end of 2007, then, assuming the President is satisfied, will be renominated for full terms. And that's where it gets interesting:
The FEC is still 1-2 months away from completing a long list of rulemakings required by the Shays v FEC decision, including its rulemaking on political activity on the Internet. Now, half the Commissioners voting on the final proposal will be those who weren't present for any of the hearings, etc. They'll get to read the printed record and the testimony, but they weren't there to ask questions, and I imagine they will be relying heavily on the remaining commissioners and the FEC's permanent staff.
True, the two Commissioners leaning in favor of stringent regulation of the Internet (Thomas, McDonald) are now gone, but we have no idea what we're getting from the new folks. And while I believe that the facts and the technology justify a lenient approach when it comes to the Internet, I certainly don't think the FEC should be filled with Commissioners biased against regulation in the first place.
In this, even though we might disagree on the end result, I share the concerns of Reps. Shays and Meehan and Sens. McCain and Feingold:
[R]ecess appointments have been used as a means to place individuals on the FEC without sufficient scrutiny, leading the public and many in Congress to believe that their loyalties lie with the congressional leaders who sponsored them. Given the perpetual impotence of the FEC, it would be most unwise to maintain this approach. Individuals chosen to fill the FEC vacancies at this crucial time should go through the regular confirmation process so the Senate can be assured that they are qualified for the position and committed to carrying out the FEC's important mission.
Bottom line? This probably gets us closer to a "win" on the Internet regulation issues, but this isn't how it's supposed to go down. There should have been hearings, and there was no need for the recess appointments that I can discern other than a desire to avoid the Senate's scrutiny.
update: Sen. Obama weighs in.