June 12, 2007

Should Hans von Spakovsky Be Confirmed to the FEC?

In the past few weeks, I've linked to numerous blog posts and articles discussing whether Hans von Spakovsky should be confirmed to an appointment at the FEC. Critics say his performance at the DOJ (and his work in Georgia before that time) should disqualify him from a full appointment (he now has a recess appointment that will expire at the end of the congressional term). Supporters say that the DOJ experience is not germane or that his work at DOJ was not disqualifying.

There is more out there since my last set of posts: Michael Slater, Bob Bauer, Gerry Hebert, John Fund. Except for Bob Bauer, a Democratic lawyer (and friend) who has an institutional interest in not having the deal for the confirmation of FEC commissioners broken up by a dispute over von Spakovsky, it is conservatives like Brad Smith and Fund defending von Spakovsky, and liberals like the former DOJ staffers opposing him.

I haven't weighed in until now, but now I'm ready to put out a few thoughts. First, Bob Bauer is right that there's really nothing in von Spakovsky's performance on the FEC as a recess appointee that should be disqualifying for a full term confirmation. To be sure von Spakovksy has taken the Republican party line more than his predecessor, Brad Smith, on issues such as 527s. But there's nothing in his opinions that suggests he'd be anything other than a typical Republican FEC commissioner. Some might not like the structure of the FEC, but von Spakovsky so far has not shown himself to be an outlier on the commission.

So it comes down to the question whether von Spakovsky's pre-FEC performance should be disqualifying. On balance, I think it should because it shows a lack of good judgment and the potential to act unfairly to political adversaries. In particular, I'd point to the following events:

1. Von Spakovsky wrote an article while at DOJ in a law review defending the voter identification law, but he wrote it anonymously (something unprecedented so far as I know), and perhaps without permission to do so. It certainly seems unethical to write such an article and then have it relied upon as precedent (as Thor Hearne did in testimony before the EAC just last year) without revealing a potential conflict of interest in writing such an article supporting one's position in litigation.

2. Worse than anonymously writing the article, von Spakovksy covered it up. First, von Spakovsky, when he became a recess commissioner claimed authorship of the article on his FEC website. I noted that fact on the blog, and after inquiries from the Atlanta Journal Constitution and the Washington Post, von Spakovksy took the article down. Only after repeated inquiries did he have an assistant admit he was the author of the article. Both writing the article anonymously and covering it up show poor judgment.

3. Von Spakovsky's performance at the DOJ makes me worry about how fairly he would deal with political adversaries. His handling of the Georgia id preclearance issue is emblematic of the problem. From the letter from former DOJ attorneys: "After careful review of the Georgia voter ID law, career staff responsible for the review came to a near unanimous decision, consistent with the precedent established by the Department in previous reviews; that the Georgia provision would negatively affect minority voting strength. Four of the five career professionals on the review team agreed. The one who did not had almost no experience in enforcing ยง 5 and had been hired only weeks before the review began through the political hiring process described above. The recommendation to object to the law, detailed in a memo exceeding 50 pages was submitted on August 25, 2005. The next day, Georgia submitted corrected data on the number of individuals who had state-issued photo identification. The career review team was prevented by Mr. von Spakovsky from analyzing this data and incorporating the corrected data into their analysis. Instead, there was an unnecessary rush to judgment and the law was summarily precleared on August 26, the same day the corrected data had been submitted. Subsequent analysis of this data by a Georgia political scientist revealed that hundreds of thousands voters did not have the required voter ID, a disproportionate number of whom were poor, elderly and, most importantly for the Voting Rights Act review, minorities." Now one might take the view, as Brad Smith does, that career DOJ lawyers were overly protective of minority voting rights, and that von Spakovsky's position was a necessary corrective. But the hastiness and apparent thoughtlessness with which he handled the issue is troubling.

4. Equally troubling is the strongarming/horse-trading that von Spakovsky appeared to engage in with the EAC, as chronicled in a recent news report. This again calls into question his judgment and fairness.

I don't think this is a close case. There are many qualified individuals to serve on the FEC who don't have questions about their judgment and fairness swirling around them. There is no reason for the Senate to confirm von Spakovsky to a full term.

Posted by Rick Hasen at June 12, 2007 10:09 PM