Home > Blog > A Tangled Web: John McCain and Public Funding
BLOG
A Tangled Web: John McCain and Public Funding
Published on February 1, 2008 03:15 PM
Category: Enforcement, Taxpayer Financed Campaigns
Hoo boy. Is John McCain cooked by public financing? Writes Mark Schmitt, "Last summer, when he was out of money, John McCain agreed to accept public financing for his primary campaign -- matching funds that require accepting a limit on total spending in the primaries and on spending in each state. He, John Edwards, and several long-gone candidates were officially granted public funds, in December, but have not yet received the cash... [due to the fact that the presidential campaign fund (funded by the $3 check off on tax forms) is out of money until 2007 tax returns start coming in -ed.] Now that he is the front-runner, McCain is surely tempted to escape that commitment, and raise private funds rather than accept the constraints of the public system.
"Now that he is the front-runner, McCain is surely tempted to escape that commitment, and raise private funds rather than accept the constraints of the public system,"
But can he do so? Schmitt accepts the opinion of Democratic lawyer Mark Elias, that he cannot. Elias, who voiced his concerns in this Politico article, clearly has a vested interest in arguing that McCain can't get out of his tax funding commitments. Why? Because, Elias is a partner at the firm that also represents Barack Obama, and is quite likely to represent any Democratic nominee in the general election. And, as Schmitt says, if McCain is locked in the system:
"The consequences for McCain -- especially in a match-up with Barack Obama -- are huge. McCain had spent $39 million by the end of last year. The total spending limit in the primaries for candidates who accept public funding is -- according to the FEC -- 'approximately $50 million.' Now that the primaries are underway and he's buying airtime, McCain will surely hit that limit soon, and may have hit it already.
"If that happens, he will have no ability to raise or spend money until he receives his first public financing payment for the general election, after he is confirmed as the nominee at the Republican convention. From the day he hits the limit until September 4 -- as much as seven months -- will be a "dark period," when Clinton or Obama, who are not limited by the primary public financing system, will be free to keep raising and spending money, and defining McCain while he is silent. Note that it was the dark period that doomed Bob Dole's 1996 campaign, leading George W. Bush to be the first to opt out of public financing, in 2000.
But for McCain, it's even worse than Schmitt realizes.
Schmitt says, "The simplest way to avoid the dark period is to refuse public financing for the general election as well, which is a completely separate system."
But that's not correct.
If he is locked in to the tax funding system -a big if we will turn to - he can’t get out simply by spending money and claiming it is for the “general election.” The primary spending cap covers the period from January 1 of the election year until the date on which he is formally nominated at the convention.
But there may be a “loophole,” although, of course, Senator McCain disapproves of loopholes and favors vigorous enforcement of the law. The “loophole” comes from the fact that the law never anticipated modern campaigns. To follow the tortured statute, the spending limit applies to “qualified campaign expenses,” which are in turn defined as an expense, “incurred by a candidate or by his authorized committee, in connection with his campaign for nomination for election.” If Senator McCain were prepared to exploit a “loophole,” I suppose he could argue that the statute doesn’t define what expenses are in connection with his campaign for nomination. Clearly the intention when the law was passed was that it was all expenses up to the convention, and that is what has routinely been the belief up to now. Otherwise, the limit wouldn’t be much of a limit at all.
But wait… even the loophole disappears in the FEC regulations, which include a temporal definition of “qualified campaign expense” to include anything incurred from the date the individual becomes a candidate “through the last day of the candidate’s eligibility,” which is turn defined as running until he drops out, draws less than 10 percent of the vote in consecutive primaries, or reaches “the last day of the matching payment period.” And that last day of the matching payment period is in turn defined as “the date on which the party nominates its candidate.”
But maybe McCain could swing something to get the GOP to somehow officially nominate him before the Convention. Except that, I am informed by friends who know these things, GOP rules regarding the nomination can only be changed at the national convention. That is, the GOP cannot adopt a mechanism allowing it to nominate McCain before the September convention until the September convention.
So really, the only alternative to McCain, other than turning to the independent 527s which he claims to hate, is to argue that he is not, in fact “locked in” to the system. Is that right?
Well, as noted, Mark Elias, quoted by Schmitt as saying yes McCain is locked in, clearly has a vested interest in that interpretation of the law. But he is also an recognized expert, and his opinion can’t be too readily dismissed as driven by partisan or client issues. Moreover, Paul Ryan of the Campaign Legal Center, a group which has represented McCain on campaign finance issues in Court and whose Chairman, Trevor Potter is General Counsel to the McCain campaign, is also not confident that McCain can legally get out of his obligation – he suggests that the FEC would exercise “prosecutorial discretion” not to pursue a violation against McCain. I agree that were I still a Commissioner, I would probably exercise prosecutorial discretion not to pursue Senator McCain, but it is rather unseemly for Senator McCain, the great advocate of "reform," to be hinging his hopes on that.
The other argument McCain might make is that if the FEC had a full contingent of Commissioners, it would meet and let him out of his public funding obligation. Whether a judge would buy that speculation is up for grabs, particularly in light of the uncertainty of the law, but surely it might. Again, that's how I would vote. But should a judge make that speculation?
And why doesn't the FEC have a full contingent of Commissioners to possibly excuse McCain from his obligation? Because of the standoff over the nomination of Hans von Spakovsky, a Republican who opposes much regulation and is being blocked in a campaign led by the Campaign Legal Center - an organization which has provided legal services to Senator McCain to argue for tougher enforcement of the laws, and which is chaired by McCain's campaign General Counsel, Trevor Potter. And what Senator is doing the blocking? Why, it is Barack Obama, quite possibly Senator McCain's fall opponent.
Ah what a tangled web we weave... . Not that campaign finance laws would ever be used for partisan advantage, of course. In any event, it looks like it's time to gin up the lawyers. The next time John McCain is in court on a campaign finance issue, it will apparently be to argue against strict enforcement of campaign finance laws.
TrackBack URL for this entry:
http://www.campaignfreedom.org/blog/trackback/a-tangled-web-john-mccain-and-public-funding
Login or Sign-Up to Comment
