Cross-posted at Project Vote's blog, Voting Matters

Weekly Voting Rights News Update

By Erin Ferns

The battle  to protect the voting rights of low income and minority citizens was marked by several victories last week. In addition to the "three key battles" on voting rights outlined by Steven Rosenfeld last Friday - Missouri's controversial voter ID defeat, Arizona's agreement to comply with federal voter registration law, and voter ID crusader, Hans von Spakovsky's withdrawal from his Federal Election Commission nomination– on Monday Kansas governor, Kathleen Sebelius vetoed a voter ID bill citing "I cannot support creating any roadblock to prevent our citizens from adding their voices to the democratic discourse that makes our nation great," she said.

The long standoff over Bush's FEC nominee, Hans von Spakovsky--Bush's chief operative on voter suppression--has ended with a win for the Dems. Spakovsky has withdrawn his name from consideration.

The move follows Harry Reid's offer earlier this week:

Senate Majority Leader Harry Reid (D-Nev.) said Monday that President Bush has two options to break the ongoing standoff with Democrats over nominations to the Federal Election Commission: either withdraw the controversial nomination of Hans von Spakovsky or force Senate Republicans to agree to votes on individual FEC nominees.

"Despite your commitment that you would accept and agree to individual votes on each of the pending nominations, including Mr. von Spakovsky's, Republican Senate leaders indicated last week that they intend to continue to block such votes," Reid said in a letter to White House Chief of Staff Josh Bolten.

Here's Reid's statement on today's news:

"I welcome the President's decision to withdraw the controversial nomination of Mr. von Spakovsky.  It is an action I have repeatedly urged the President to take for more than six months.  Democrats stood united in their opposition to von Spakovsky because of his long and well-documented history of working to suppress the rights of minorities and the elderly to vote.  He was not qualified to hold any position of trust in our government.

"His withdrawal today is a victory for our electoral process.  With Mr. von Spakovsky now removed, I anticipate that we will be able to swiftly put a functioning FEC in place.  That too is what the American people deserve."

(More discussion in Matt Keener's diary.

Hans von Spakovsky, Bush's embattled nominee for the Federal Election Commission, has withdrawn his name from consideration.

This just broke over the AP SFGate

Bush "reluctantly accepted" von Spakovsky's request, the White House said.

As has been covered extensively at TPM muckraker and noted by Adam B on the front page here today, the Federal Elections Commission (FEC) has been disabled by the Bush Administration's efforts to confirm notorious vote-suppression guru Hans von Spakovsky to the FEC.

Democrats rightly continue to block approval of von Spakovsky.  However, in another shameless effort to install Republican Partisans in influential positions in our elections bureaucracy, the Bush Administration has nominated for the FEC a lawyer intimately acquainted with how to suppress voters:

Caroline Hunter

When last we left the Federal Election Commission, the lights were on but no one was really working.  Four of the six commissioners' nominations expired at the end of 2007, leaving the the Commission shy of a working quorum as Democrats remained steadfast that odious nominee Hans von Spakovsky receive a separate up-or-down vote, which Senators on both sides of the aisle recognize would sink his nomination, which is why Sen. Mitch McConnell refused to go along with it.

[A full FEC has six Commissioners, with no more than three allowed from any political party.  It takes four votes for it to do anything.]

Time marched on.  The FEC has been unable to investigate important complaints which have been filed, but it has also been unable to release John McCain from the public financing limits per his request.  It would also be difficult for McCain to then receive public financing for the general election come September should there not be a functioning Commission to administer the program.  

And, in the meantime, former FEC Chairman Bob Lenhard, a Democrat who'd have no trouble being re-confirmed, withdrew his name from re-nomination last month because of the delays.

The solution would seem simple: have Bush replace von Spakovsky with an acceptable nominee, end the logjam and move on.  But, of course, that's not how it works.

Instead, the White House has kept von Spakovsky's nomination and located two new Republican nominees for vacancies on that side of the aisle -- NRCC lawyer (and former lawyer for Rep. Tom DeLay) Donald McGahn and Caroline Hunter, who has sat on the Election Assistance Commission despite having no relevant experience previously.

This, however, required jettisoning Commissioner Mason, who had been a seriously roadblock to McCain's scheme to evade the public financing limits and whose confirmation was assured.  Sen. Reid is, understandably, miffed.

[On the Dem side, Commissioners Ellen Weintraub and Steven Walther will remain; Lenhard's slot would be filled by Cynthia Bauerly, Sen. Schumer's legislative director.]

Democracy 21 president Fred Wertheimer, our frenemy, has this to say:

The White House dumped Mason after President Bush had twice proposed Mason for the FEC in the last two and a half years, in December 2005 as a recess appointment and in January 2007 as a nominee to the FEC for Senate Confirmation.

The only apparent reason for President Bush to drop Commissioner David Mason at this stage, an FEC candidate he had twice proposed for the Commission, is to prevent him from casting an adverse vote against Senator McCain on important enforcement questions pending at the Commission. The questions deal with Senator McCain’s request to withdraw from the presidential primary public financing system and the consequences of a loan the McCain campaign took out and the collateral provided for the loan.

Under these circumstances, President Bush’s dumping of Mason can only be viewed as a bald-faced and brazen attempt to wrongly manipulate an important enforcement decision by the nation’s campaign finance enforcement agency.

The White House action today represents the political equivalent of obstruction of justice.

Noted Democratic election law attorney Bob Bauer weighs in:

The reason for the White House to act now is to restore the FEC to full voting power, which is not usually a Republican priority but now serves the immediate need of giving Senator McCain the most direct, statutorily routine access to public funding for the general election.  In this one move, the White House ended McCain's accountability for his use or abuse of the primary public financing system while putting him in position to take money for the general.  

For this maneuver to have been arranged for the benefit of Senator McCain, of all people -- the John McCain who has regularly, severely criticized the FEC as a "corrupt" agency -- is a remarkable turn in his career as a reformer.  A Commissioner who acted to enforce the law, to just raise an important question of enforcement, has been stripped of his post.  This was clearly in Senator McCain's interest, this raw power play.  It is also in his interest to have the FEC, back in business minus Mason, arrange for his money for the fall campaign.  

It is inconceivable that McCain was not informed of the plan.  In fact, it is highly probable that he was in involved in its formulation or its approval.  In the days ahead it will be seen whether he will be asked about his role.

It is an obvious question and a fair one.  This development at the FEC, after all, is one of kind.  For all the time that McCain has savaged the performance of the FEC, he has led the sizeable crowd of critics who believed that the agency is too beholden, on the whole, to the narrow interests of parties and their candidates.  Yesterday, Republicans could not have acted more narrowly in just this vein:  effectively firing a Commissioner to immunize their Presidential nominee from enforcement action in a pending case but making sure that there is enough of an agency left to get him the money needed to finance his campaign.

I should note that Commissioner Mason was strongly on the netroots' side throughout the whole debate over regulating political activity online, and I always found him to be a decent, sincere man, whatever differences we may have had on other issues.   During those 2005 hearings, he dressed down then-IPDI head Carol Darr on the whole question of who should receive the protection of the "media exception" from campaign finance law, explaining why bloggers merited equal treatment in a way that any of us would agree with:

I think part of the reason is a lot of us kind of don't understand your point or your concerns, so I want to probe it a little bit and first starting from the Internet and one of the first major Internet decisions, which was about protecting pornography, of all things: the Supreme Court celebrated the fact that on the Internet, everyone can be a publisher, and they said this is a great thing. And a lot of us looked at it, and we say this is a great thing. So from the supply side, if you will, what is the problem if lots of the things on the Internet are judged to be publications, just like traditional?

And from the other side, you know, we look down; General Electric, which may be, what, the second biggest corporation in the world owns, you know, big media; Cap Cities, Disney, Murdoch, Time-Warner; I mean, you know, these are -- if you want to talk about holes in the corporate prohibition, these are huge. And as you have suggested, they are limited in some ways by some professional standards, but what we've heard from the Internet people is you have not only the sort of professional obligations of a lot of the sites but their credibility; in other words, the social pressure within the Internet itself to police activity. So I guess I just don't understand what you're concerned about losing by a broad expansion of the media exemption to Internet activities.

But there is good news, if this NYT report is credible: "The White House declined on Tuesday to withdraw Mr. Spakovsky’s nomination, but a spokeswoman, Emily Lawrimore, said Republican officials were now willing to allow each of the nominees to be voted upon separately."

If that's the case, we might actually have a functioning FEC before the Fourth of July.

update: Never mind the alleged good news; McConnell still says no separate vote on von Spakovsky.

Cross-posted at Project Vote's blog, Voting Matters

Weekly Voting Rights News Update

By Erin Ferns

A year has passed since the U.S. Attorneys scandal first gathered steam for the firings of nine federal prosecutors – at least two of whom claim being "pressured by Republicans to bring charges of voter fraud against people who intended to [vote] for Democrats." But the issue is far from settled. This week, the phantom issue of "voter fraud" emerged in the guise of news stories, editorials, memos, blogs, legislation, and even a Senate hearing either extinguishing or inflaming the alleged election integrity problem, particularly regarding voter identification requirements. Ultimately, what has become most evident in the last year is how far partisans are willing to go in order to legalize voter suppression tactics through the smoke-screen of "voter fraud."

One of the big stories right now is John McCain's possible gaming of the public financing system. Democrats are understandably giddy about the prospect of hoisting McCain on his own petard, after all, the law is called McCain-Feingold. However, if McCain is severely penalized, or is forced to abide by the spending limits (no more spending until September). It will probably set public campaign financing back many, many years.

During this Iowa Caucus process, a lot of us have fallen into a media/blog narrative that Edwards is the fighter and Obama is the consensus builder (or spun negatively, Edwards is all about warfare and Obama is a compromising chicken).  The candidates themselves have helped spread this narrative about themselves and the others, and the media and bloggers and all of us have followed along.

I think these narratives are too constricting for both these candidates.  I'm sure that Edwards would seek consensus when need be -- it's the nature of our political system.  On the flip side, Senator Barack Obama will absolutely fight for progressive principles.  To be sure, he has expressly told us that he believes that consensus building can be a strong ally to the progressive cause.  However, he's also shown us through his actions that he won't turn to compromise, that he will fight, when the progressive cause calls for a fighter.

I've discussed this situation before, and now, it's official.  WaPo, A-1:

The Federal Election Commission will effectively go dark on Jan. 1 because Congress remains locked in a standoff over the confirmation of President Bush's nominees to the panel. As a consequence, the FEC will enter 2008 with just two of six members -- short of the four votes needed for the commission to take any official action.

"There is, in effect, nobody to answer the phone," said Robert F. Bauer, a leading Democratic campaign finance lawyer.

Although the 375 auditors, lawyers and investigators at the FEC will continue to process work already before them, a variety of matters that fall to the commissioners will be placed on hold indefinitely. Chief among them are deciding whether to launch investigations into possible campaign finance violations and determining the penalties.

This occurred because Democratic courage -- Sens. Obama and Feingold stood their ground to block the reappointment of Bush recess appointee Hans von Spakovsky to a full term, and when Sen. Mitch McConnell refused to allow an up-or-down on von Spakovsky alone, all three current recess appointments to the FEC now terminate at year's end.  What are the consequences?

When it comes to federal matching funds, Democrat John Edwards has the most to lose. The FEC certified the payment of the first installment of funds this week, including $8.8 million for Edwards. But matching payments for money he has raised this month, or will receive in subsequent months, may have to wait until the FEC has four members.

There is debate among campaign finance lawyers about whether matching funds could be released without a formal commission vote, one Edwards campaign official said. Because the next installment of funds would not arrive until after the early primaries, strategists inside the Edwards campaign said they are not worried.

[N.B.  I disagree with the Edwards claims about whether a formal vote was needed.  I've directly spoken with a former FEC commissioner about this, who confirmed to me that four Commissioners' votes would be needed to certify the availability of funds.]

And, in the meantime, there is no enforcement:

[T]here is a range of vexing campaign finance questions that hang in limbo: Can a firm that operates a blimp accept unlimited contributions to fly it over New Hampshire with Ron Paul's name on the side? Can a senator use his campaign account as a legal defense fund? How will campaigns comply with the new law that requires them to identify the lobbyists who are collecting campaign checks on their behalf?
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"Work on those questions will grind to a halt," said FEC Chairman Robert D. Lenhard, whose recess appointment will expire on New Year's Eve. ...

"For all of the complaints about the FEC, when it comes to campaign finance law, it is the enforcement agency," said Lawrence Noble, a former FEC general counsel. "We're in the middle of one of the most hotly contested elections in recent years -- where you have a campaign that started so early, where they're raising more money than ever before, where there are new concerns about fundraising and about the bundling of contributions. I think the public would like to know that someone is keeping an eye on all this."

And one more question: who is going to stop former campaign managers of presidential candidates from starting unregulated, "independent" 527s from dumping third-quarters of a million dollars in ads on Iowans?

update:  Edwards, 40 minutes ago:

After a rally here, the former North Carolina senator told reporters that by law, he can have no control or over such groups, known as "527s."

"I can’t talk to them at all," he said. When asked if he would say publicly that he wished the groups would stop running ads for him, Edwards changed the subject. But later, in Coralville, he said that he did wish the groups would drop the ads.

"I would encourage all the 527s, not just this one, but all the 527s to stay out of it," he said. "But I have no legal authority over that."

Two bullet points for campaign finance fans this morning:

• You only have until noon eastern today to submit comments to the FEC on the Edwards/ActBlue situation, and I encourage you to do so.  More citizen comments now online.


• Paul Ryan of the Campaign Legal Center has taken me to school on a few points on the matching funds issue (see this diary), so please join me in the classroom for these notes:

The subject of this post is how and whether and when public matching funds will be distributed to qualified presidential primary candidates.  And, though I’ll describe the applicable regulations below, my response to Adam is, in a nutshell, that unfortunately there are no public matching funds for Senators Obama and Feingold to block.

In a press release last week announcing that Sen. Biden was the fifth candidate declared eligible to receive matching funds, the Commission shared some bad news:

"Treasury Department regulations require that funds for the convention and general election grants be set aside before any matching fund payments are made.  Information provided by the Treasury Department shows the balance in the fund as of October 31, 2007 was $165,383,063 and the Commission has estimated that no funds will be available for matching payments in January 2008.  As deposits are made from tax returns in the early months of 2008, matching fund payments will be made from those deposits until all certified amounts have been paid.  Based on historical patterns, the FEC estimates that funds may not be available to disburse before March 2008."

Regardless of what happens with the confirmations of Mr. von Spakovsky and the other nominees, Messrs. Edwards and Dodd won’t receive a penny of public matching funds in January, nor will Messrs. McCain, Tancredo and Biden—the other three candidates that the FEC has so-far declared eligible to receive matching funds....

Instead, these candidates will likely be seeking commercial loans, using as collateral their eligibility to receive matching funds in March of next year when American taxpayers have replenished the public financing program coffers.  This type of borrowing has been done before by Presidential candidates.

Ryan goes on to note that the FEC should be able to certify these amounts while they still have five Commissioners.  In other words, we can continue the fight against von Spakovsky unencumbered by concern over his impact on the matching funds issue, and, indeed, his nomination must be stopped.

I am a campaign blogger for BarackObama.com and this is crossposted at BarackObama.com/blog.

As I wrote yesterday, one of the remarkable things about this campaign is the number of people who have been inspired by Barack to participate in politics for the first time.

And while Barack Obama is exciting a new generation of voters to engage, he's also fighting to preserve and strengthen voting rights so that more, rather than fewer, people can take part in the process. Senator Obama worked with civil rights leaders to help secure the reauthorization of the Voting Rights Act and he has been a leading Senate opponent of onerous photo ID provisions that disproportionately disenfranchise the poor, disabled and minority voters who are less likely to have a drivers license or other government-issued forms of identification.

Updated 12-13-07: Certain aspects of this diary are wrong.  Go here for an update.

Bear with me here, because it's a bit messy:

1.  Hans von Spakovsky is one of three pending nominees to the Federal Election Commission, and is currently serving in a recess capacity. He's real bad.  Really, really bad.

2.  Sens. Obama and Feingold have put a hold on his nomination (as has Feinstein), scuttling a Harry Reid deal to allow him to come up to the floor as part of a package vote.  Republicans won't let von Spakovsky be voted on separately (i.e., because he'd probably lose such a vote).

3.  The FEC is currently down to five Commissioners, and it takes four votes to get anything done.  At the end of this Congressional term, the current recess appointments of von Spakovksy and two Democratic Commissioners will lapse, leaving the Commission with two Commissioners and rendering the FEC statutorily incapable of functioning -- until and unless the President makes further recess appointments.  For this reason, the WaPo editorial page argues that it's better to have a lousy commissioner than no FEC at all.

4.  And here's the upshot, says George Will: "The Post wants von Spakovsky confirmed only to keep the FEC functioning. He is being blocked because four senators have put 'holds' on his nomination. One of those four who might be responsible for preventing the FEC from being able to disburse taxpayer funds to Democratic presidential candidates Joe Biden, Chris Dodd and John Edwards is . . . Barack Obama."

Indeed, let's look at the governing statute:

(c) Voting requirements; delegation of authorities

All decisions of the Commission with respect to the exercise of its duties and powers under the provisions of this Act shall be made by a majority vote of the members of the Commission. A member of the Commission may not delegate to any person his or her vote or any decisionmaking authority or duty vested in the Commission by the provisions of this Act, except that the affirmative vote of 4 members of the Commission shall be required in order for the Commission to take any action in accordance with paragraph (6), (7), (8), or (9) of section 437d (a) of this title or with chapter 95 or chapter 96 of title 26.

2 U.S.C. 437c(c)

And chapter 96 of title 26 is, indeed, the chapter regarding matching funds for presidential primary candidates.  No Hans, no money.  D'oh.

Updated: Via Matt Browner Hamlin of the Dodd campaign:

"The Dodd campaign is confident the funds will be there."

Updated again: okamichan13 suggests this may be incorrect, as the actual disbursement may be a ministerial role by the Secretary.  Looking into this.

...I looked.  I think he's wrong.

Thanks to Hans von Spakovsky, the crack Florida legislature, and one whacked out Nigerian, 14,000 US citizens in Fl are going to be denied their basic right to vote. Of course, Hans' targets were blacks and hispanics, and that makes up most of the total, but there must be a bunch of white people, maybe even a few suburban white males in that bunch. I hope to hell the Republicans who got caught in this anti-democratic/Democratic scam will begin to realize what Amerika is coming to under Bush, Rove, Hans von Spakovsky, and their ilk. Via Josh Marshall, link to Southwest Florida's News-Press:

County election officials say the number of voters lost through Florida's central registration system is small — 90 percent of applications get voter cards.

oh, by the way; that ten percent: that was 76,000 people on the initial run.

In response to the recent March on the Justice Department pointing out that prosecutions of Hate Crimes have dropped 71% to it's lowest point in the last 10 years - Hannity decided to show his true colors, again.

This coverage was provided by CNN.

But naturally this doesn't much matter to Sean Hannity who ignores each and every one of the incredible abuses in cases like The Jena 6, because he'd rather justify the initial charge of attempted murder for what was essentially a schoolyard brawl and whine about those Poor Victimized Duke Boys.  Nice.

I was very close to making the title a call for a new Senate Majority Leader, but I am holding off for now.  I fully realize that there is a slim, if any, majority for the Democrats in the Senate, and I fully realize that it is pretty easy for the minority party to make most things get 60 votes to even get the "upperdown vote".

And yet, when Reid was minority leader, he couldn’t (wouldn’t?) pull off the same tactics when it came to horrible bill after horrible bill was rammed through.  However, this isn’t really my reason for writing this diary today.  It is one thing to have your hands tied by procedural maneuvers, or even to be gun shy for political reasons – but it is another thing to actively do things that would undermine the values that this country (and presumably the Democratic Party) holds dear, especially when it is behind the scenes and in a sneaky manner.

Harry Reid had made a deal, he thought, to let a partisan Republican lawyer from DoJ's civil rights group, Hans von Spakovsky, get a vote on his nomination by Bush to the FEC – in a "package deal" that would let 3 others be voted on too.

von Spakovsky is one of the most repugnant of Bush's nominees to a position to monitor electioneering, 1 of the most influential of folks to jumpstart an outright purge of the voter rolls, beginning in Florida 2000.

This is going to be both short and sweet and hit and run.  I'm putting it up here in hope that someone with some sort of influence will see what seems to be to be an obvious course of action.  Here's the takeaway:

The Democrats should hold two votes for FEC Commissioners, one pairing up the execrable Hans von Spakovsky with someone they've designated to be doomed, and one pairing off a Democrat and Republican who will actually be appointed.  Vote down the first pair; vote in the second pair.

If the Republicans won't go along with that, let them fully own the fact that starting in 2009 we have the prospect of a seriously understaffed FEC.  (There are currently five commissioners rather than six; Robert D. Lenhard, Steven T. Walther, and von Spakovsky are recess appointments; David M. Mason's term is almost up, and Ellen L. Weintraub has already wanted to leave by now.  A full replacement of what should be staggered six-year terms is simply bad government.)

The Hill reports that the deal currently floating is that Von Spakovsky gets his own vote, but if he's not confirmed, there's no vote on the other three nominees at all. That amounts to another built-in, painless filibuster for the Republicans. If their voter suppression agent loses, they'll suppress the votes of the entire Senate on everyone else. How appropriate!

But it appears that Feingold's objection (and, the article reports, Obama's too) is to this arrangement, as well as the all-or-nothing suggestion floated earlier. Good!

Also mentioned in the article:

Democratic sources say some senators are objecting to the plan and instead want to require a 60-vote threshold for von Spakovsky’s approval.

In the abstract, I disapprove of the use of this sort of procedure, as it also ratifies the painless filibuster. And here, we'd be talking about the Democrats benefiting from this procedure. But at this point, we may be in a "sauce for the goose" situation.

Update by Adam B, 12:38 pm: Via Rick Hasen and Roll Call, this "deal" is now a "no deal".  Reports Roll Call:

Sen. Barack Obama (D-Ill.) on Wednesday derailed a plan blessed by Senate leaders to vote on controversial Federal Election Commission White House nominee Hans von Spakovsky, a move giving Democrats time to breathe in the ongoing Senate stalemate on FEC nominees. ...

But a vote on the deal, which was expected to come to the floor as early as today, appeared to be off by mid-day Wednesday after Obama — and unconfirmed others — voiced concerns that von Spakovsky’s nomination was too controversial not to go through regular floor proceedings.

A Democratic aide said Senate offices continue to explore "concerns with Mr. von Spakovsky, if they rise to the level of other objections, as well as where the caucus lies."