The DNC is filing a complaint against John McCain, challenging his ability to withdraw from the public financing system, in an attempt to lock him into a $54 million spending requirement until he is officially nominated at September’s Republican National Convention. Given that McCain has already spent over $49 million, such financial limitations would be crippling to his campaign.
I asked McCain himself about the matter on a conference call last Friday, and he was confident that the campaign was on “solid ground” legally, a view reiterated by the campaign over the weekend. I’ve been working on a longer piece on all the thorny legal details raised here, but due to the time-sensitive nature of the topic, I figured I’d do a quick post. I am still waiting to speak with McCain’s lawyer on the topic, and will update accordingly.
Brad Smith, a former Federal Election Commission chairman who has been a fierce critic of campaign finance reform, told me on Sunday that there are several “open questions” raised by the controversy. One is whether the fact that McCain secured a $1 million loan, in part, by assuring the bank that he would reapply for matching funds if he did poorly in New Hampshire, is “constructively” the equivalent of using his potential to collect public money as collateral, which would bar him from leaving the system.
Though of lesser significance, there’s also the fact that McCain used his certification to get on the ballot in Ohio, saving a costly and time-consuming process that rival campaigns had to go through, which Smith argued could be part of a larger case to show that McCain derived benefit from being in the system, and now he’s trying to have it both ways.
The other complication is that there are four vacancies on the 6-member FEC, so they cannot reach a quorum to rule on the matter. The McCain campaign insists that it’s a constitutional right to be able to withdraw from the system as Howard Dean and Dick Gerhardt did, and that they don’t need the FEC’s rubber stamp. But another legal view is that applying to be in the public financing system is the equivalent of entering into a contract in which terminating the agreement requires the consent of both parties. Adding to the irony is that the reason there aren’t enough FEC commissioners is that Barack Obama put a hold on one of the Republican nominees last year over civil rights concerns.
For those who want more, Smith has a lengthy post on the matter here.
In all likelihood, Smith argued, McCain will either eventually be cleared, or, in the worst case, asked to pay a small fine way down the road. So in the end this is more a PR issue, insofar as the father of campaign finance reform will be portrayed as somebody who is using his clever lawyers to game the system, which is what he railed about for years.
With that said, given the contrast between the enthusiasm this topic elicits when I speak to lawyers about it, and the nodding off that occurs when I try to explain it to normal people, I’m not sure we should bank on this to change the minds of many average voters.
