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The McCain Matching Fund Mess:

Senator John McCain's presidential campaign seems to have gotten itself into a little campaign finance mess by initially pledging to accept public financing, in exchange for various spending limits, and then changing its mind. Former FEC Commissioner Brad Smith provides a good overview of the law and the issues here. It provides all the background you need to understand the story.

The wonderful irony of government involvement in funding political campaigns -- that is, giving your tax dollars to candidates and parties to use for convention balloon drops, negative TV ads, and campaign robocalls -- is that it actually increases the perception of corruption in politics and distracts from discussion of political issues. Rarely has this phenomenon been so clearly illustrated as in the current flap over whether or not Senator McCain is committed to using tax dollars -- with accompanying spending limitations -- prior to his formal nomination at the GOP Convention in September.

The other delicious irony is that there are few who can match McCain's fervor for strict enforcement of campaign finance laws. Any chance this experience will change his mind?

Mordecai:
Lie down with dogs, get fleas. They just keep on itchin', don't they, John?
2.27.2008 10:03am
tarpon (mail):
Petard, throw, oops!!!
2.27.2008 10:09am
Deoxy (mail):
Any chance this experience will change his mind?

Chances are slim to none, and Slim left town years ago.
2.27.2008 10:10am
Temp Guest (mail):
I'd love to see McCain stuck with the amount of campaign funding that he and his senate buddies carefully calculated as insufficient to win an election when running against an incuimbent.
2.27.2008 10:11am
Chris Smith (mail):
I'd just love to see the internet successfully lower the costs for political expression.
Ron Paul managed to get significant internet coverage, but little traction.
Was this due to insufficient funds, unpopular policy ideas, or something else?
2.27.2008 10:25am
Glenn W. Bowen (mail):
yep, the champion of converting 2nd amendment rights, transparent government, and free speech to privileges steps in his own poop.

I find it mighty satisfying.
2.27.2008 10:54am
Thoughtful (mail):
"The other delicious irony is that there are few who can match McCain's fervor for strict enforcement of campaign finance laws. Any chance this experience will change his mind?"

No more than there was for Tom Lantos' experience of the horrors of Naziism led him to call for limited government...people always see themselves as exceptions to the rule that power corrupts.
2.27.2008 11:10am
L:
Funny, I came to a legal blog thinking there might be an interesting discussion of the legal issues involved, which are non-trivial in this case.

Instead I get a Jonah Goldberg impression comparing Tom Lantos to Nazi governing philosphy. That's pretty sad, not to mention a ridiculous non-sequitor.
2.27.2008 11:54am
EH (mail):
I have a feeling this flap will ultimately be chalked up to the ease of forgiveness over permission. Sadly.
2.27.2008 11:55am
Duffy Pratt (mail):
Ohio should disqualify him. He'd still win the nomination. I'm not sure, but I don't see how the Ohio qualification process should have any bearing on whether he took matching funds or not.

The bank loan is a little more troubling. Within the letter of the law, my guess is that he did not pledge the funds. The difficulty, of course, is that that is a matter of state law, and state law doesn't necessarily apply. The FEC could apply a state law standard, or a federal standard (of their own making). I'm assuming, of course, that the election law is not clear on the issue of whether a contingent pledge of matching funds, where the contingency does not occur, is a use of those funds..

But the reason the bank loan is more troubling is not because of the legal issues, but because of the amount of power it puts in the hands of a single backer of the candidate. In effect, the bank had the ability to kill McCain's campaign or to keep it going. Can he really say that he is not beholden in any way to those bankers? (And yes, I know he can "say" it, but is it plausible?)
2.27.2008 12:07pm
The American Dream:
So John McCain wants to limit other people's right to free speech, but not his own. What a phony!!!
2.27.2008 12:34pm
Just Saying:
Normally, I'd grouse about how we have government thugs deciding what political speech is and is not okay. I have to confess, though, that McCain brought this upon himself, so he deserves to feel the full range of the First Amendment Abridgment Act. I hope he's the republican Mondale.
2.27.2008 12:47pm
Cornellian (mail):
people always see themselves as exceptions to the rule that power corrupts.

But I really am the exception!!!
2.27.2008 12:48pm
Cornellian (mail):
It must be awkward to be part of the Republican base at this point, having to go from schadenfreude over McCain's getting tangled up on this issue to working for his election. That's going to be a tough transition to make.
2.27.2008 12:49pm
bittern (mail):
JLA, once the author says liberals were "tendentious" to oppose a nominee but "Republican Leader Mitch McConnell held firm to [a] principle" to defend him, I have a hard time trusting him to fairly guide me through the story. Specially as it looks circuitous and lawyerly.
2.27.2008 12:52pm
one of many:
Ah, but the beauty for McCain is that the impasse at the FEC makes legitimate the argument that his actions were completely reasonable within his interpertation of the law and the FEC should have given him an advisory opinion if they felt otherwise (under FEC practices and precedents), but the FEC cannot give advisory opinions because they lack a quorum. This is not just an area where the law is silent, it is an area where the law maintains silence despite having a duty to speak if there is a violation.
2.27.2008 1:46pm
arbitraryaardvark (mail) (www):
Vote for the crook - it's important. Hillary 2008.
Vote for the crook - it's important. McCain 2008.
2.27.2008 1:56pm
Thomas_Holsinger:
It couldn't happen to a more deserving person.
2.27.2008 4:14pm
Justin (mail):
I'm not sure I understand Smith's points. If his point is that taxpayer funded grease-campaign is bad, well without taxpayer funding it would be private funded grease-campaigns. I've previously criticized Smith for either ignoring or disguising what we're talking about when we're talking about corruption - the influence of elected policy officials through illegitimate means. It doesn't mean departure from an idealistic notions of political debate.

If his view is that people are using taxpayer money to falsely allege corruption, which increases the "appearance of corruption," I think he's being quite uncharitable about the meaning of "appearance of corruption" as used by the Court. What the Court means by "appearance of corruption" is not *false allegations of corruption*, but the *existence of a system that is susceptible to corruption, where proving such corruption is difficult to impossible.* There's nothing inconsistent between "appearance of corruption" and "freedom of speech," even if there is an inconsistency between campaign finance laws and FOS.

If Smith's point is that McCain is showing that the campaign finance system is just as susceptible to corruption, first of all, nobody says its perfect. Second of all, what McCain would be guilty of (assuming that what he did was illegal or untoward, which I happen to think it is), is defrauding the United States. This may be "corrupt" in the sense that it is both morally wrong and illegal, but it is not corrupt in the campaign finance sense of the meaning.
2.27.2008 5:15pm
PersonFromPorlock:
Surely Sen. McCain is prominent enough to be exempt under the Constitution's Important Persons Clause?
2.27.2008 5:29pm
cboldt (mail):
-- Within the letter of the law, my guess is that he did not pledge the funds. --
.
That's no slam dunk, and on a bit of reflection, I think the equitable conclusion has to be that he DID pledge public matching funds (note carefully, I didn't say he "pledged existing certifications") in his original loan agreement. Did he pledge existing certification? No, in fact, there was NO certification until December 20 or so, and one can't pledge what one doesn't have. But he did pledge to do whatever and all that was required to obtain public funds, and to grant a perfected security interest to the lender after that action was completed.
.
Yes, the promise was contingent on the campaign not performing well, and it had the "if I withdraw from the program in order to destroy existing certifications" language. But the point of collateral is to cover the loan in case voluntary funding falls short.
.
I'd say he pledged the public funds. The whole point of the "I'll stay within matching funds bounds, and will reapply, and will grant a perfected security interest" language is to give comfort to the lender that the matching funds money WILL be available as collateral, if voluntary contributions come short.
2.27.2008 9:34pm
cboldt (mail):
On the subject of an Obama hold on a nominee, the Congressional Record indicates that as of Dec 19, 2007, the DEMs offered straight up or down votes on each nominee. That means there was no hold. An interesting compromise would have the contentious nominee held in abeyance, and the two parties could confirm, en bloc, a PAIR.
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It's in GOP interest to prevent an FEC quorum until McCain's election fate is sealed. Watch what they do ... not what they say.
2.27.2008 9:39pm
Gaius Marius:
McCain has a bigger problem since he is not a natural born citizen.
2.27.2008 10:36pm
Kelvin McCabe:
Someone upthread mentioned equity - - what about the concept of 'unclean hands'? Its been awhile since law school so that may be the wrong equitable term - but i am thinking its the idea that a person who has 'unclean hands' should be denied equity (or at least the right to seek redress in a court of equity).

Applied to McCain herein: McCain publicly gives Obama grief for not agreeing to the spending limits prescribed when one is taking public funds. Implicit in the charge is that Obama at one time made the pledge that he would accept the limits, that McCain relied on that pledge and said he would to (so it would be "fair" and "equal" and all that jazz) and then Obama switched stances and is now waffling on the issue because of his fundraising and elecotral success as the primary season moves along.

Anybody see a disconnect here between McCain's own legal arguments -that he is not legally bound to accept public funds and spending limits- and the public perception he is driving at when he attacks Obama on this issue that he has already agreed (and if one were being less than charitable, that he is "bound" by this decision) to accept said public funds?

Unclean hands or just hypocrite war mongering piece of sh*t?
You decide 08!

For the record, despite living in Chicago, I am no Obama fan. I voted for Ron Paul.
2.28.2008 5:53pm