Nominee to FEC pits lawyers vs. senators

President Obama’s first nominee to the Federal Election Commission (FEC) has pitted the Washington legal community against senators bent on building new support for increased campaign finance regulations.

The fight, which features veteran election lawyers from both sides of aisle against reformist Sens. John McCain (R-Ariz.) and Russ Feingold (D-Wis.), comes as the FEC moves to streamline its enforcement process.

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The election lawyers say that initiative will offer new measures of fairness. Those who favor more regulation worry the initiative will undermine campaign finance law at a key juncture, when the commission has frequently deadlocked in important decisions.

John Sullivan, the associate general counsel of the Service Employees International Union and Obama’s nominee to replace outgoing Commissioner Ellen Weintraub, has become the focal point in the battle between the two sides.

If he is confirmed, Sullivan would fill a void among the commission’s three Democrats.

Unlike the other two Democrats, Sullivan has practiced election law.

The only other election lawyer on the commission is Republican attorney Donald McGahn, whose term expired in April (though he remains on the job until his replacement is named).

“The commission would benefit from having more actual practitioners serve,” said Rob Kelner, a veteran Republican election attorney at Covington & Burling. “It’s difficult for a non-election lawyer to parachute in and figure things out quickly.”

Despite support from both Republicans and Democrats at prominent law firms, McCain and Feingold said late last month that they would not allow Sullivan’s nomination to go through under unanimous consent until Obama names commissioners to replace McGahn and Democratic Chairman Steven Walther, whose term also expires in April.

The two senators argue that the lack of new commissioners has caused gridlock among the commission, which has allowed favorable outcomes for groups and individuals accused of wrongdoing under McCain-Feingold.

“The FEC is currently mired in anti-enforcement gridlock; the president must nominate new commissioners with a demonstrated commitment to the existence and enforcement of the campaign finance laws,” McCain and Feingold said in a joint statement.

Meanwhile, Senate Majority Leader Harry Reid (D-Nev.) dismissed their suggestion that the seats in which terms have expired be filled before Sullivan’s nomination goes through. Weintraub’s term expired in April 2007 and she has been serving as an acting commissioner while awaiting her replacement.

“There is no reason to hold up a pending nomination for additional names,” said Jim Manley, a Reid spokesman. “The other nominees are holding over in their seats as provided for under the law, and there is no current plan to replace them.”

Reid, Manley said, has no intention to submit a name to replace Walther, a former Reid staffer. Senate Minority Leader Mitch McConnell (R-Ky.), meanwhile, has not submitted a name to replace McGahn, spokesman Don Stewart said. The president nominates the commissioners, usually with input from the Senate.

Several watchdog groups that want to see greater enforcement of campaign finance law have issued warnings about Sullivan, saying they are concerned about his work before the commission while at SEIU. Though the most well-known watchdog groups have yet to formally oppose his nomination, Sullivan has taken some “highly deregulatory positions,” according to Paul Ryan, a lawyer with the Campaign Legal Center.

If confirmed, Sullivan would join a commission that has taken election lawyers’ advice on several key regulatory procedures. New regulations made public over the last month will allow those applying for an advisory opinion to testify before the commission as it considers the request; candidates whose campaigns are audited will have a chance to testify before their audit reports are finalized.

Supporters argue that by opening the advisory opinion process, commissioners will be able to get a better sense of what rules candidates and party committees are trying to clarify.

“There have always been concerns about the ways in which commission processes can affect the people involved,” said Brian Svoboda, a Democratic election attorney at Perkins Coie. “Sometimes you’re like Tom Sawyer watching his own funeral.”

“The whole theory is to give us the input from the respondent at an earlier stage,” FEC Chairman Steven Walther told The Hill. “There hasn’t been a methodology before to formally allow” input from respondents.

Now, Svoboda said, when a candidate or campaign seeks an opinion on a move that would break new legal ground, the commissioners will “have the ability to ask you questions and ask you to present information if they think it’s helpful to their decisionmaking process.”

And by allowing those being audited to testify, experts say, the candidates will be able to defend themselves before any enforcement process begins. That, they say, is only fair.

“Often, audit reports become the basis of FEC enforcement actions, and if you’re not allowed a seat at the table during the audit process the deck is stacked against you,” Kelner said. The new rule “shouldn’t be remotely controversial, because it should have been done years and years ago. It provides a very minimal degree of due process.”

But agency watchdogs say the FEC is focused on issues that are small beans compared to the underlying deadlock between three Republicans and three Democrats that has led, in some groups’ minds, to a lack of serious enforcement.

“We’re deeply concerned about what has happened at the Federal Election Commission because, for all practical purposes, the three Republican commissioners have shut down enforcement of campaign laws,” said Fred Wertheimer, president of Democracy 21. “Something has to be done to change the circumstances at the commission or else we’re not going to have a Federal Election Commission available to enforce the campaign finance laws in the 2010 congressional elections, and everyone is going to know that.”

McGahn, a Republican commissioner who has become a lightning rod for groups pushing for greater enforcement, disputed the notion that nothing has been happening at the FEC.

Since the latest wave of commissioners got their jobs on the panel, the body has resolved more than 350 cases and brought in nearly $2 million in civil penalties, he said. The FEC has also addressed bundling rules, implemented federal funding for presidential candidates and issued advisory opinions on dozens of matters. The deadlock, he said, has largely surrounded cases the Supreme Court itself has yet to work out.

“I think we can all agree these are not easy issues,” McGahn said. “It’s not enough to just point to problems, as some people have. We’re offering solutions.”

Walther said further reforms to commission proceedings could come out as early as Thursday.