After nearly six months of paralysis, the Federal Election Commission could be back in business this month, thanks to a compromise ending a drawn out standoff in the Senate over nominations to the agency that oversees campaign finance law.

If the Senate acts soon, as expected, to approve five nominations to the FEC, it would mark the first time since its creation in 1975 that so many commissioners have been appointed at once. It also would give the agency its first full slate of six commissioners for the first time since March 2007. But with a backlog of pending regulatory issues that have piled up since January, the new commission will be playing a game of catch-up for the rest of this election season.

The withdrawal of controversial Republican nominee Hans von Spakovsky last month, followed by the White House’s nomination of Matthew S. Petersen as a consensus replacement, has paved the way for a settlement of a dispute between Senate Democratic and Republican leaders that left the agency with only two seated commissioners during the crucial 2008 primary season. Since it takes at least four commissioners to conduct official business, the two-member panel has been unable to resolve any pending complaints or do much of anything else, except issue statements of guidance.

The Senate Rules and Administration Committee is preparing to vote on Petersen, but his nomination hearing is expected to go smoothly since he already serves the committee as the Republican chief counsel. Once approved, his nomination would be sent to the floor for a vote, along with the four other pending FEC nominations, three new and one returning.

For many, the satisfaction over an end to the FEC stalemate has been tempered by the recognition that the impending personnel changes will make for a slow transition.

“To have a massive turnover all at once is less than ideal,” said FEC Vice Chairwoman Ellen L. Weintraub. the only Democratic appointee still serving. “We won’t be able to do things as quickly as we otherwise might.”

“But,” she added, “I am sure that we’ll catch up.”
New Members Vs. Old

Along with Weintraub, the two other Democratic appointees will be Steven T. Walther, who was renominated to a second term, and Cynthia L. Bauerly, who currently serves as counsel to Sen. Charles E. Schumer , D-N.Y., on the Senate Judiciary and Rules committees.

In addition to Bauerly and Petersen, the two other first-time appointees include Republicans Donald F. McGahn and Caroline C. Hunter. Hunter is currently vice-chairman at the U.S. Election Assistance Commission. McGahn was an election law attorney for the National Republican Congressional Committee and former Majority Whip Tom DeLay, R-Texas.

Of the new appointees, McGahn is considered the most controversial. He was nominated to the FEC once before in 2005, but ended up withdrawing because of Democratic objections to his association with DeLay. The same objections have resurfaced this time around, with watchdog groups Democracy 21 and Citizens for Responsibility and Ethics in Washington (CREW) criticizing his nomination again. But McGahn has received support from top Democratic election law attorneys, including Bob Bauer, counsel for Democratic presidential candidate Barack Obama , and former FEC chairman Robert Lehnard.

“The fact is, Don is a very prominent Republican campaign finance lawyer, and he certainly is expert in the Federal Election Campaign Act and the FEC’s practices and procedures,” said Marc Elias, a partner at the Perkins Coie law firm and former counsel to the Kerry-Edwards 2004 Democratic presidential campaign.

“Is he a Republican? Absolutely. But then the commission is composed of three Democrats and three Republicans,” Elias said, referring to the partisan structure of the agency.

As an attorney at the NRCC, McGahn argued a number of issues over the years before the FEC. He has been a consistent advocate for loosening campaign finance regulations, specifically when it comes to coordinated advertising between candidates and parties and uses for “soft” money — funds raised in excess of federal limits.

There is less of a track record for the other three new nominees. Democrat Bauerly, and Republicans Petersen and Hunter. Of the three, only Petersen held previous positions that required an expertise in campaign finance law, but all sport the political connections that have become a de facto necessity for scoring a nomination to the agency.
Changes Ahead for the Agency?

With all the new faces sitting around the commission table, some FEC observers say there is bound to be not only a new look but a new attitude at the agency.

“Every time you have a change of commissioners you have a little bit of a different take on issues, a change in priorities,” said Elias. “You’ll get a rule making docket that reflects the interests and experiences of those commissioners.”

Former FEC Commissioner Michael Toner, who served between 2002 and 2006, said the new blood “is really an opportunity to transform the agency. And I think that’s a good thing. It’s one of the real virtues of term limits.”

But another former commissioner, Scott Thomas, worried that the transition could lead to a lack of focus early on.

“When we had three new commissioners come in 1998 ... every one was wanting to reinvent the wheel a little bit. Every new commissioner wants to leave their mark,” said Thomas. “So when you have a whole bunch coming on at once, you have a lot of pulling in several different directions.”

Focus is one thing the commissioners will sorely need to deal with the multitude of pressing issues that have piled up during the agency’s hibernation.

Topping the list of tasks: writing new rules to make campaign finance regulations comply with the lobbying and ethics law passed last fall. The lobbying law (PL 110-81) requires campaigns to report the names of lobbyists who raise or “bundle” $15,000 or more for congressional and presidential candidates. The provision has yet to be enforced because the FEC has essentially been unable to function, for lack of a quorum, since January.

Another rule slated to be written concerns advertisements run in tandem by presidential candidates and the national parties. Some have argued that these so-called “hybrid ads” amount to a loophole that parties can use to subsidize their candidates.

The commission also faces five months’ worth of investigations, cases and complaints that are waiting for action, as well as several pending requests for advisory opinions from various groups and at least one now defunct 2008 presidential campaign.

In an average month the agency usually votes on 40 to 50 enforcement matters, but the new FEC commission “might be looking at 200 to 300 votes awaiting enforcement action,” according to former commissioner Toner.

Among some of the more pressing complaints is one filed by the Democratic National Committee against presumed Republican presidential nominee John McCain . The DNC has accused McCain of violating campaign finance law by removing himself from the public funding system for the primary election. But given the FEC’s track record and the current pile-up in investigations, no resolution of the matter is expected until long after this year’s November general election is over.