Tensions flare over empty seat on Federal Election Commission

Advocates of strict campaign-finance regulation are maneuvering to generate opposition against Republican and Democratic leaders’ favored candidates for the Federal Election Commission (FEC), expecting the president to name his nominees soon to the agency.

But the efforts of one leading advocate, Fred Wertheimer, president of Democracy 21, have sparked a squabble with the expected GOP nominee and with a leading Democratic election-law expert.

As a result, Wertheimer has backpedaled from and corrected the attack he launched last week against Don McGahn, general counsel of the National Republican Congressional Committee.

The skirmishing reveals the high political stakes involved in the little-noticed process of appointing new commissioners to the FEC.

Congressional leaders have a keen interest in whom the president nominates because the agency regulates every aspect of how lawmakers fund their political activities. It is also a major concern for proponents of campaign-finance regulation, such as Wertheimer and Sen. John McCain (R-Ariz.), because the agency enforces the campaign-finance laws that they have spent much of their careers crafting.

Wertheimer is involved in a lawsuit challenging regulations the FEC adopted to implement the Bipartisan Campaign Reform Act of 2002.

The tension between the two camps has produced a stalemate that has left one of the Republican seats on the commission vacant since Aug. 21, which McGahn is expected to fill. Observers of the agency expect that action on the vacancy is imminent.

In an effort to get out front of the president’s expected nominations, Wertheimer circulated to the media last week a press release criticizing candidates backed by Republican and Democratic leaders.

“There may be some inklings that they’re starting to look at this again,” Wertheimer said. “At some time in the near future, they will [look at it]. I’m trying to get these issues out on the table again.”

Wertheimer pasted to the top of his release an edited version of a comment McGahn made to Julian Salisbury, a British academic. The full comment on the FEC was, “It’s not like other agencies because you have the charge of the fox guarding the hen-house.” The pasted version, however, left out the words “the charge of,” which created the impression that McGahn supported the allegation.

Wertheimer also criticized McGahn for being “closely tied to House Republican leaders” and for serving as a campaign-finance lawyer to former House Majority Leader Tom DeLay (R-Texas.)

McGahn immediately called Wertheimer to confront him about the edited quotation, saying he had merely acknowledged a long-standing criticism of the agency by Wertheimer, McCain and other proponents of overhauling campaign-finance laws.

The next day, Wertheimer amended his release by circulating the unedited quote to the media and defended himself by saying the quotation was taken from the newspaper Roll Call.

Wertheimer drew criticism from Robert Bauer, a prominent Democratic campaign lawyer who as counsel for the Democratic Congressional Campaign Committee has been a frequent opponent of McGahn’s.

“Democracy 21’s attack on McGahn included egregious liberties with one of his previously reported comments, a bit of mischief that the organization was compelled to acknowledge in a corrective post on its website,” Bauer wrote on his website softmoneyhardlaw.com.

Bauer also defended McGahn’s affiliation with the Republican Party and DeLay.

“So he is condemned for ‘publicly’ defending his client….” wrote Bauer. “This is an attack, not an argument; it is spiteful, not thoughtful; and it is unfair to McGahn.”

“The agency’s deliberations and decisions will benefit from deep experience with politics and the law possessed by a potential nominee like McGahn,” Bauer wrote.

The president is also expected to renominate GOP commissioner David Mason. Democrats have asked the president to nominate Steven Walther, a Reno-based lawyer with ties to Senate Minority Leader Harry Reid (D-Nev.), and Robert Lenhard, a labor lawyer who has challenged the constitutionality of key campaign-finance restrictions.