J.Ray Kennedy writes on the Hill that the President should revive the Election Assistance Commission (EAC) and simply appoint all members of the commission without the consent of the Congress. Of course, a committee in the House of Representatives recently voted to abolish the EAC, so this action would certainly set up another constitutional battle with the Congress. You hear similar sentiment from the free speech regulators with regards to the Federal Election Commission (FEC) when they don’t get what they want. Ignoring the nuclear nature of such a power play, Kennedy writes that if the Republicans don’t play ball soon, the President should start the game without them.
After re-reading key portions of HAVA, I believe the following could help get the EAC back to work:• The president’s role is to appoint EAC members “by and with the advice and consent of the Senate”, similar to ambassadors, judges, and Cabinet members.• Congressional leaders — the Speaker, the House minority leader and the majority and minority leaders of the Senate — are obliged by HAVA to “recommend” candidates for EAC vacancies. But it does not say that the president must accept — or wait for — those recommendations beyond the time given for filling vacancies.• If vacancies on the commission are to be filled “in the manner in which the original appointment was made and … subject to any conditions which applied with respect to the original appointment” and if one of those conditions (203.a.4) was that appointments were to be made within 120 days following enactment of the act, I would argue that replacements should be appointed within 120 days of the vacancy they are filling.Thus, if he has not received recommendations within 120 days, the president should forward nominations to the Senate for confirmation. In doing so, he should nominate at least two individuals who are well regarded within the other party in a good-faith effort to give the EAC the balance that it was intended to have, just as he has done in naming his Commission.