May 07, 2008

Campaign Legal Center Objects to Throwing Commissioner Mason Overboard

See here. So Bob Bauer, Fred Wertheimer, Gerry Hebert, and I all agree. What about Trevor Potter, Sen. McCain's lawyer, and Brad Smith? I'd be interested to know.
UPDATE: Trevor Potter responded to my query on the election law listserv, and with his permission, I post his response below:

    Rick Hasen's last post asked "Trevor Potter, Sen. McCain's lawyer" to respond to the series of recent statements about the President"s FEC nominations.

    The McCain campaign has said for some time that it would like to see the current stalemate resolved as soon as possible in order to get the FEC functioning again. Sen McCain has repeatedly stated this position publicly, and I of course agree with statements made by many others that this is an vital public policy objective, as well as directly important to the Presidential candidates. For this reason, the several recent letters from Sen. Reid to the White House proposing a resolution to the logjam, and the White House announcement yesterday that it would send new nominees to the Senate are welcome.

    However, I have not commented on the recommendations by Sen. Reid of specific persons for FEC seats, and on the White House decision to nominate specific individuals, and not to nominate others, for two reasons. First, as the the McCain campaign has noted to the press today, these are the President's appointments, and not Sen. McCain's. Senator McCain's only role was to urge all parties to resolve the deadlock. Second, it has seemed inappropriate for me to comment on the specific composition of the FEC since it is well-known that matters involving the McCain campaign are before the Commission, and thus before whoever is ultimately confirmed.

    However, now that Rick has publicly prodded me, I expect continued silence would be taken as an unwillingness to engage, with adverse conclusions drawn. So, let me say that I think the criticism of the President's decision not to re-appoint Dave Mason rests on a faulty assumption. Critics write as if Commissioner Mason has already determined that Sen. McCain has violated federal campaign finance law, and that he would so find if only he is on the Commission when a quorum is restored. I do not believe this is the case. Commissioner Mason wrote the campaign in February to ask for additional information concerning Sen. McCain's withdrawal from the public funding system, and it was provided to him in full. Commissioner Mason did not state that the McCain campaign acted improperly in any way: he stated that he believed the FEC had to vote on Sen. McCain's withdrawal from the primary funding system, while the campaign's lawyers do not think such a vote is required. The McCain campaign believes that Commissioner Mason's questions have been answered satisfactorily, and that if he is on the Commission when a quorum is restored he will agree that Sen. McCain's withdrawal from the system was proper. Accordingly, given the lack of evidence that Commissioner Mason thinks otherwise, the controversy about the White House decision to nominate someone else for the Mason seat seems to be a manufactured one.

    From a McCain campaign perspective, the only other thing I will say now is that I hope the Senate acts quickly to vote on these nominations, and if Hans von Spakovsky does not have the votes that a replacement is found rapidly so that the election cycle may finally have the benefit of a fully functioning FEC.

    Trevor Potter

My response to Trevor's "faulty assumption" point is this: I think the assumption is that Mason (as Trevor would, if he were still on the commission) would look at this question fairly, and not just in the interest of his political party. I am less confident about some of the nominated commissioners.

Still more: Adam Bonin weighs in at DailyKos and Bob Bauer responds to Trevor.

Posted by Rick Hasen at May 7, 2008 11:33 AM