McCain, public financing, and the law

By Michael J.W. Stickings

Lost in all the attention lavished on Obama/Wright, and on the Democratic race generally, as well as on McCain's embarrassing Middle East trip, is the not-so-insignificant matter of how McCain is paying for his campaign -- or, rather of where the money is coming from. Is he or is he not in the public financing system? Has he broken the law? Here's WaPo's The Trail:

Sen. John McCain has officially broken the limits imposed by the presidential public financing system, reports filed last night show.

McCain has now spent $58.4 million on his primary effort. Those who have committed to public financing can spend no more than $54 million on their primary bid.

So has McCain broken the law? The answer is far from simple.

Here's how it looks to me: He was in the system when he was well behind in the race and needed money, then he tried to get out of the system when he started winning and jumped into the lead. Specifically, he wrote a letter to the FEC on February 6, the day after Super Tuesday, the day he became the clear frontrunner, declaring his intention to withdraw from the system:

McCain's lawyers said that gave him freedom to spend as much as he wanted -- once he announced his intent to withdraw from the system, they say, he was released from the spending caps.

But Federal Election Commission Chairman David Mason wrote McCain's campaign last month to alert him that the commission had not yet granted his Feb. 6 request to withdraw, and that the commission would first need to vote on the matter. A snag: The FEC has four vacancies and therefore lacks a quorum to consider the matter.

On the one hand, what was McCain supposed to do? On the other hand, he still seems to have broken the law. Indeed, he used matching funds as collateral against a $4 million bank loan, and "rules say that candidates who use matching funds as collateral have to remain within the confines of the system".

And yet there's still no quorum. The FEC isn't in a position to rule on the matter.

Legal technicalities aside, however, what is clear is that McCain was in the system before he wanted out of it. He wanted to use public funds to pay for a campaign that looked like it was headed for defeat, back when he couldn't raise enough money to fund it privately, but, once he started winning, once the money started rolling in, the public financing system was no longer useful to him and indeed became a hindrance to him. In other words, it was all a matter of convenience to him, the law be damned.

Let's hope the FEC gets around to resolving this matter. Which is to say, let's hope the FEC starts functioning again. It seems to me we need to know whether or not McCain broke the law.