(Because the Washington Post refused to publish this piece rebutting this George Will column, we're publishing it here in full. If you're interested in background on Spakovsky, check out the TPMmuckraker archives. - ag)

Doomsday scenarios of an unregulated 2008 election are being threatened in an attempt to force through the confirmation of a Federal Election Commission (FEC) nominee, Hans von Spakovsky, who is deeply embroiled in the scandals over the politicization of the Department of Justice (DOJ). But, what is forgotten in these scenarios is that it is von Spakovsky’s shameful record of minority vote suppression and partisan abuse of his office while at DOJ that has caused several Democratic Senators to put a hold on confirmation.

We are former career attorneys in the Department of Justice’s Civil Rights Division who spent a combined 58 years there. Since the confirmation hearings concerning the nomination of Hans von Spakovsky to the Federal Election Commission last June, we have vigorously opposed his nomination. While he was at the Civil Rights Division, von Spakovsky played a central role in injecting partisan political factors into decision-making on enforcement matters and the hiring process, and made repeated efforts to intimidate career staff. Moreover, he was the point person for undermining the Civil Rights Division’s mandate to protect voting rights.

The shameful record compiled by von Spakovsky was detailed in two letters (available here and here) sent to the Senate Rules Committee earlier this year by six former voting section staff members who were under von Spakovsky’s supervision while at DOJ. Those letters not only cited grossly political actions by von Spakovsky, they also noted numerous other abuses, including an obvious conflict of interest when von Spakovsky refused to disqualify himself from reviewing the Georgia voter ID law after he published anonymously a law review article arguing in favor of such laws.

There are a variety of ways to resolve the current impasse over the von Spakovsky nomination whose case for confirmation cannot stand on the merits. The threat of an FEC shutdown is greatly exaggerated and certainly no reason to call upon the Senate to ‘hold its nose’ and confirm von Spakovsky as an FEC Commissioner. Let’s set the stage to see how the current FEC impasse can be resolved. The FEC is comprised of six commissioners, three Democrats and three Republicans. Several of the current commissioners are recess appointments whose terms are about to expire; and four nominees, two Republicans (including von Spakovsky) and two Democrats have been nominated and are awaiting Senate confirmation. If no action is taken by the Senate on any of the nominees, then come January, the FEC will have only two commissioners and will lack a quorum to conduct its business. Because several Democratic Senators have found von Spakovsky’s record reprehensible (more on that later), they have blocked his nomination from being brought up. So why not let the Senate vote to approve the others? Because the Republican leader in the Senate, Mitch McConnell, has threatened to block a vote on any subset of all four nominees. Hence, the predictions of an FEC shutdown.

The angst over a possible FEC shutdown is puzzling because there are at least two rather obvious alternatives to breaking the current impasse. First, the President could readily find a well-qualified and public-spirited acceptable nominee to replace von Spakovsky; or the Senate could call Senator McConnell’s bluff and immediately vote and confirm two other nominees, one Democrat and one Republican, giving the FEC the four Commissioners necessary to conduct its business. It seems unlikely to us that the vast majority of Senators (Democrats and Republicans) would be unwilling to approve one Democrat and one Republican to the FEC. Either solution is preferable to rewarding someone like von Spakovsky who has shown a disdain for campaign finance laws and amassed a disgraceful record of vote suppression far worse than even that acknowledged in the Post editorial.

Recently, nationally syndicated columnist George Will, no fan of efforts to reign in the effects of big money in our body politic, wrote a column stating that “sensible citizens should rejoice about the current disarray of the FEC.” But he then oddly veers off this theme to make unsupported and factually inaccurate personal attacks on former Civil Rights Division attorneys who oppose von Spakovsky's nomination, inaccuracies that could have been found by simple fact-checking. For example, Will easily could have taken the time to accurately state who signed the letter sent to the Senate Rules Committee that he spent so much time criticizing. By simple fact checking, he also could have learned that the claim that Joseph Rich gave $455 to ACT was not a personal donation to the group but instead resulted from the purchase tickets to a Bruce Springsteen concert, the proceeds of which went to ACT.

Will’s broader charge is that attorneys who spent their careers in the Civil Rights Division are politically tainted partisans. But the attorneys he cites worked at DOJ largely for Republican Administrations and received collectively numerous awards and commendations for their work. Supporters of von Spakovsky like George Will, unable to defend von Spakovsky on the merits, instead launch an unwarranted attempt to bash persons who dedicated their legal careers to public service, and then went to work for non-profit groups dedicated to enforcing our civil rights and protecting our civil liberties. Nor does Will note how extensive or deep the opposition to von Spakovsky has been. His record of undermining voting rights is so dreadful that numerous civil rights organizations, for the first time ever, have called upon the Senate to reject von Spakovsky’s nomination.

George Will is not just sloppy with his factual inaccuracies, but he also gets it wrong when he attempts to defend von Spakovsky’s legal decisions at DOJ. For example, Will writes that the von Spakovsky was correct to overrule a unanimous recommendation from eight career lawyers and professionals who recommended against Voting Rights Act approval of the Texas congressional redistricting plan in 2003. According to Will, von Spakovsky’s decision to approve the plan was proven correct when the Supreme Court upheld 31 of the 32 districts in the Texas case. This is not an accurate description of the case. By the time the case reached the Supreme Court, there were less than a handful (three by our count) districts before the high Court that were challenged on Voting Rights Act grounds. The vast majority of the districts in Texas never were the subject of a Voting Rights Act claim. Even more importantly, the very grounds for the Supreme Court’s decision to invalidate one of the congressional districts was the same reason the career professional had recommended against approval of the map when it was pending with DOJ: that Latino voters were on the verge of electing their preferred candidate to Congress in the district and the Texas remap effectively took that right away. Furthermore, the argument that the Texas plan violated Section 5 of the Voting Rights Act (the issue before DOJ when von Spakovsky made his decision) with regard to African-American voters was stronger than the VRA Section 2 claims made in the subsequent litigation with respect to African-Americans. All DOJ needed to find to block the Texas plan from being implemented was the loss of black voting strength, as the career staffers had found in their detailed memorandum urging an objection. Von Spakovsky’s decision to overrule the staff in the face of the combination of the loss this in voting strength in Forth Worth, the elimination of African-American influence districts throughout the state, and the opposition to the plan of all but one of minority legislators in Texas was not justified by prevailing Supreme Court law concerning Section 5. Not surprisingly, approval of the plan furthered the efforts of the GOP and now disgraced ex-Congressman Tom DeLay to gain more seats in Texas, something consistent with the unprecedented injection of partisan politics into legal decision-making by von Spakovsky and other political appointees at DOJ. Of course, George Will mentions none of this.

The level of politicization in this Administration, which has been consistently reported by the Post and criticized in Congress, is unprecedented and is responsible for undermining the Justice Department’s credibility. For Senators to now reverse course and reward one of the central players in this politicization with confirmation to the FEC disregards the serious damage he caused to the Department and would be a grievous mistake.

JOSEPH D. RICH was chief of the voting section in the Justice Department's civil right division from 1999 to 2005 and worked for the Civil Rights Division from 1968-2005. He now works for the Lawyers' Committee for Civil Rights Under Law.

J. GERALD HEBERT was deputy chief and acting chief of the voting section from 1987 to 1992 and worked for the Civil Rights Division from 1973-1994. He now works for the Campaign Legal Center.