[Congressional Record Volume 153, Number 194 (Tuesday, December 18, 2007)]
[Senate]
[Pages S15820-S15822]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                             FEC VACANCIES

  Mr. BENNETT. Mr. President, I rise to note with some sadness that we 
are reaching a point at the end of this session where it appears we 
will adjourn without acting on any of the nominees for the Federal 
Election Commission. The effect of this will be to leave the Federal 
Election Commission with only two functioning commissioners, when the 
law calls for six. It is worse than that. The law insists that no 
action can be taken by the commission without the votes of at least 
four. So by having only two left, we will leave

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the Federal Election Commission with no capacity to function.
  I have a history with the Federal Election Commission which makes me 
sensitive to the importance of this group. When I was elected, there 
was an allegation made against me which I considered highly partisan. 
It went before the FEC and before the entire commission a vote was 
taken, with the three Republicans upholding the position I took and the 
three Democrats holding the position on the other side. Because they 
could not muster four votes, nothing was done. In my view, this was 
justice. But the thing I found difficult was the fact that the 
partisanship on the FEC was so heavy, there was an almost automatic 3-3 
vote on everything. It makes far more sense for the commissioners to 
work together to recognize the merits of the case, rather than simply 
responding in a knee-jerk partisan fashion to the individual or group 
that is bringing the charge. In my case, that is what was happening. A 
Democratic group brought the charge that I had violated the law. The 
three Democrats on the FEC automatically agreed with that, and the 
three Republicans automatically disagreed. I don't think, frankly, any 
of them spent any time examining the merits. If they had, I am sure I 
would have been unanimously exonerated, but that is not the way it 
worked in those days.
  It got to the point here on the floor where a piece of legislation 
was introduced saying, whenever there is a tie in the FEC, the general 
counsel will break the tie. Along with Senator McConnell, I and others 
did our best to defeat that bill because it would have de facto made 
the general counsel of the FEC the sole decisionmaker for that body.
  I am happy to report that those days seem to have passed. We now have 
an FEC where the vast majority of the votes are unanimous, where 
partisanship seems to have taken a back seat to an attempt to get 
things right and act on the merits rather than the partisan challenge.
  Four of the members of the FEC are recess appointees who must be 
confirmed. The President has sent forward four names--two Republicans 
and two Democrats. In the standard tradition, practice, procedure, and 
precedent of the FEC, the Democratic leadership in the Congress got to 
pick the two Democrats. The Republican leadership got to pick the two 
Republicans. Always before we have moved these nominations forward en 
bloc, maintaining the balance between Republicans and Democrats, with 
Republicans approving the Democratic nominations, and Democrats 
approving the Republican nominations.
  In our committee, the Rules Committee on which I have the honor to 
sit, we sent all four of the names en bloc to the Senate. There was 
great controversy about one of them, which I will address, but in the 
spirit of the past history of the committee, instead of singling out 
this one individual to come to the Senate without recommendation, we 
said we will treat all four of them alike, and all four names came to 
the Senate without recommendation so that the Senate could work its 
will.
  Now because of the controversy surrounding one of the Republican 
nominees, it becomes clear we will not have a vote on any of the four, 
producing the deadlock I described at the opening of my remarks. We 
will have only two functioning FEC commissioners beginning next year, 
and the FEC will not be able to rule on any of the controversies that 
may arise in the 2008 election. Furthermore, the FEC will not be able 
to distribute any Presidential matching funds in the 2008 election. 
This comes as bad news to some of our colleagues in the Senate, because 
many of them were dependent upon and expecting the matching funds to 
come out of the Presidential campaign fund. They will not get them, 
because these nominees will not be approved. Who is the one who is 
causing all of this problem? His name is Hans von Spakovsky. He has 
been attacked by outside groups on the grounds that he is somehow 
insensitive to minority voters.

  I wish to spend a moment examining that particular attack. It all 
comes back to a position Mr. von Spakovsky took when he was at the 
Civil Rights Division of the Justice Department and recommended the 
pre-clearance of a voter ID law. There were those who were career 
attorneys in the Civil Rights Division who said a voter ID law is 
terrible and should not go forward. But Mr. von Spakovsky disagreed 
with them. Then, acting on Mr. von Spakovsky's recommendation, the 
management of the Justice Department said: No, we are going to go 
forward.
  According to those who have attacked Mr. von Spakovsky, he was 
overruled by a court. The court did issue an injunction, saying that 
the voter ID law could not be enforced, thus leaving the impression 
that von Spakovsky is an ideologue, while the career attorneys were 
simply doing their job and the court stepped in to protect the country 
from this ideologue. In fact, the injunction had to do simply with the 
timing of the implementation of the law and was not a determination on 
the merits of the case, with the court saying it didn't want the law 
enforced right now but wanted to wait until the matter could be fully 
considered.
  After the case was heard, a Federal judge, one appointed by President 
Carter, although that probably shouldn't make any difference, and the 
one who had initially issued the injunction, upheld the 
constitutionality of the Georgia voter ID law and, in that fashion, 
ratified the position Mr. von Spakovsky had taken all along. Mr. von 
Spakovsky's position was consistent with the ruling of the Federal 
court that said the career attorneys who argued with him were wrong. He 
was on the right side of the law; they were on the wrong side of the 
law. Yet he is being attacked as somehow being the ideologue who must 
be kept off the FEC lest the FEC be turned into some kind of partisan 
hotbed of difficulty and dissension.
  The fact is, Mr. von Spakovsky has served on the FEC as a recess 
appointee for 2 years. We need not project what he would do if he were 
confirmed. We can look at what he has done in that 2-year period. To 
that point, I repeat that the vast majority of the cases that have been 
dealt with since he has been on the FEC have been unanimous. He has not 
been a lone voice seeking to destroy the FEC or turn it into some kind 
of partisan hotbed. He has acted completely in the mainstream, in the 
opinion of the other members of the FEC.
  Let me quote from one of the Democratic members of the FEC, repeating 
again these people are appointed for their partisan positions. This is 
not a circuit court where you want to find someone who is above 
partisanship. This is where the law specifically says there will be 
three Republicans and three Democrats.
  This is what Mr. Walther, a Democratic member of the FEC, had to say 
at the December 14 FEC meeting. This is from a very recent article. He 
said Mr. von Spakovsky was ``a terrific person to work with'' as a 
colleague, a ``fine commissioner.'' The article continues: ``He 
(Walther) spoke after Mr. von Spakovsky made a traditional nominating 
speech, praising Mr. Walther's qualifications to be vice chairman. Mr. 
Walther's comments echoed a speech during the FEC meeting by Mr. 
Lenhard to close his year-long chairmanship by praising bipartisan 
cooperation on the commission and recounting the FEC's accomplishments 
in resolving enforcement cases.''
  One of the things we hear around here during confirmation battles is, 
the President ought to make more mainstream nominations. Not for this 
one; this one, by law, is supposed to be partisan. But here is a man 
who has had 2 years of experience, 2 years of service, being praised 
for his activities, clearly in the mainstream, being attacked for a 
position he held before he came to the FEC where polls have been done 
and found that 81 percent of Americans, with only 7 percent dissenting, 
agree with Mr. von Spakovsky's position that we ought to have voter ID.
  We have photo ID requirements in order to keep cigarettes out of the 
hands of teenagers. We have photo ID requirements in order to keep 
terrorists off airplanes. I have had the experience in my home State of 
Utah, where I like to think I am fairly well known, of being asked for 
a photo ID when I have presented a credit card, in an effort to avoid 
identity theft.
  Isn't preventing voter fraud as important as keeping tobacco out of 
the

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hands of teenagers or preventing identity theft? Eighty-one percent of 
Americans agree with von Spakovsky's position on this matter. Yet he is 
being attacked as being outside the mainstream for what his critics 
call a partisan position.
  Because of the holds that have been placed on Commissioner von 
Spakovsky's nomination, we now come to this impasse where the FEC will 
be left with only two Commissioners, unable to rule on any potential 
violation that may occur in the 2008 election--a Presidential year, 
along with all of the Senate races that are up, and every Member of the 
House of Representatives. The FEC will not be able to rule on any 
violations because they will have only two Commissioners--all because 
of an ideological bent pushed by groups outside of the Congress saying 
that this one man, because he agrees with 81 percent of the American 
people, is somehow disqualified for being too partisan.
  The principle has always been that the Republicans pick the 
Republican nominees for the FEC and the Democrats pick the Democratic 
nominees for the FEC--a principle that makes sense. I do not know very 
much about the Democratic nominees for these positions who will not be 
confirmed, and, frankly, I do not care because they are not mine to 
select. They have been picked by the Democratic leadership to represent 
the Democratic position, and I am willing to vote for them on that 
basis.
  Mr. von Spakovsky has a 2-year history of acting intelligently, with 
great integrity, and great collegiality in this position, and it is a 
tragedy that the whole Commission will be denied the opportunity to 
function in a Presidential year; that those Presidential candidates who 
are depending on Presidential matching funds will not get them because 
outside groups have demonized this one public servant. It is a sad day 
that this kind of thing is happening with respect to our governmental 
appointments.
  The PRESIDING OFFICER. Who seeks recognition?
  The Senator from Georgia.
  Mr. ISAKSON. Mr. President, I see the distinguished Senator from West 
Virginia. I certainly do not want to preempt him if he wants to go 
next. Does the Senator have a preference? If not, I will go ahead, if 
that is OK.
  The PRESIDING OFFICER. The Senator from Georgia is recognized.

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