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The point is that if he wins the nomination he intends just to refuse the money, and spend like a nominee anyway, despite the fact that he's already legally obligated to abide by the spending cap.

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I mean, really... Reldim, we are not fools. The plan to raise the money is to then spend the money. Read the quotes from McCain's counsel. Their defense is that they think the FEC will use "prosecutorial discretion" and not take action. Which as a factual matter is probably correct.

Whether that is enough for a candidate who draws much of his support from the premise that he is "different," more of a "straight talker," and more "ethical" and "honorable" than his opponents or than most politicians, whom he has relentlessly attacked for using "loopholes" in the law, is the question that some voters might want to consider.

Brad Smith
Professor of Law
Capital University Law School
Capital University website
Center for Competitive Politics website

Why are so many people under the delusion that the public matching fund system was created in McCain-Feingold. It was created by the first foray into "campaign finance reform" back in 1972. It was not "McCain's baby" - he wasn't even in Congress then.

If you start telling me that McCain is raising money that violates the altered contribution limits of McCain-Feingold then I'll listen. But getting the most out of a system that has existed for decades is not something I get huffy over.

The funny thing is that most of the people who will now get on McCain's case are people who firmly believe that campaign finance reform of any kind, including the public matching system, is unconstitutional. So why are we in an uproar about candidates doing something we think they have a constitutional right to do (raise and spend as much money as they'd like).

McCain hasn't taken the money - by whatever cause that may be, it doesn't make it untrue. The guy is still in debt from the loan he had to take to keep the lights on last summer. And I see no problem with the candidate changing his mind at any time before he actually gets/cashes a matching fund check. The technical provisions may be against me, but the idea is to limit someone who has received public funds from over-spending. McCain hasn't actually gotten any money, even if he's eligible, even if they should have sent it to him by now (oh the innumerable ways an FEC shutdown will manifest itself).

Let the FEC prosecute. We should welcome it - maybe it would go farther than any of us could toward convincing McCain that the answer is not more regulation of finance. Maybe he'd actually argue to get rid of some of these rules, laws, and nonsense.

Here it is from the FEC directly.

Also available on the site are Tancredo, Edwards, Dodd, Biden, Kucinich, and Hunter.

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says:
"As a candidate seeking to become eligible to receive... matching funds..."

Do the restrictions kick in when you try to become eligible or when you accept matching funds (which the campaign has not done).

Also, if someone is eligible but turns down the funding, why would they be restricted?

I'm not an expert in this field, Brad is. But Brad also hates McCain on a personal level. It'd be nice to have an expert who is more impartial.

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McCain First Presidential Candidate Declared Eligible for Primary Matching Funds in 2008 Race.

As part of your application, you agree to abide by the spending caps. Payments under the program begin on January 1. There is no way after that to "decertify." McCain is arguing that because the funds have yet to be paid, he can have it both ways - he can take the taxpayer subsidy if he can't raise voluntary donations, but if he can raise donations, then he won't cash the checks when they come. No harm, no foul. Or, as his advisors seem to suggest, "prosecutorial discretion" (which presumes something that could be prosecuted, of course). And for any other candidate, this would almost certainly be good enough. Whether it is good enough for a man who campaigns as a "straight talker" of the highest ethics, routinely calls his rivals "corrupt," excoriates the use of "loopholes" in the law, and constantly proclaims his exceptional "honor" as a reason to vote for him over his rivals, is a question invididual voters need to consider.

Brad Smith
Professor of Law
Capital University Law School
Capital University website
Center for Competitive Politics website

Brad,

You say that on Jan. 1 the fund had a shortage. Is there any possibility that McCain actually needed the money then and would have used it if available? And is there any possibility--however remote--that the fund wouldn't eventually overcome the shortage? If so, then it seems McCain had no other practical choice than to continue to raise private funds. And once you've raised the funds from thousands of individual donors, it's not practicable to give it back. You'd have to use it, it seems to me. And if that's technically illegal as a result of the certification McCain filed, then it's the result of a deep flaw in the law itself--possibly resulting in "absurd consequences" as the statutory interpretation cases call it. That's not the sort of illegality I would call dishonorable. But I'm only raising the point because I've never researched the law. These were just questions that occurred to me after reading your posts.

The amount of money in the "fund" is determined by how many people check the little box on their tax forms. At the start of a presidential year, the FEC is required by law to set aside enough money to pay for the general election (oddly, there is a good chance that both parties will turn down those funds this year) and the party conventions (did you know you subsidize balloon drops?). After that, it starts paying out matching funds to candidates.

For the past several elections, the fund has been short of money. When that happens, candidates have traditionally borrowed against their expected payments from the fund. McCain borrowed earlier this year, but rather than use his expected payments as collateral he used the value of his "mailing list," precisely so he could leave his expected payments from the fund uncommited. No candidate has ever before suggested that he could continue to raise funds over the cap as an "insurance policy," if you will.

I would agree that it is really an unsubstantial violation. I wouldn't call it, as you do, a "technical violation." A "technical violation" is simply a "violation," just as a "loophole" is better described as "the law." And that's the rub. For any other candidate, we might think, "how clever." But Senator McCain's appeal - and claim - has always been that he is above that. He is not like those other politicians, whom he regularly accuses of exploiting "loopholes" and being "corrupt."

There is much to admire in Senator McCain. I have always called him an American hero. But if Senator McCain, youthful heroism aside, is really just like all the other candidates, he loses one of the compelling reasons he has offered for his candidacy, and one that accounts for much of his popularity. Unfortunately, this is not the only such episode. Going back to the Keating 5 scandal twenty years ago (and for which, in print, I have defended Senator McCain's behavior against serious allegations), Senator McCain's career is full of such incidents.

Brad Smith
Professor of Law
Capital University Law School
Capital University website
Center for Competitive Politics website

Brad: I've now read the Political article, and it raises a question in my mind--but again I'm not familiar with this area of the law, so I hope you don't mind if I pester you with another question.

You say in a post above: "As part of your application, you agree to abide by the spending caps. Payments under the program begin on January 1. There is no way after that to 'decertify.'"

The Politico article you link to says this: "Even if McCain decided not to accept the payments, he’d need the FEC to vote to allow him to withdraw from the system. But a partisan dispute over nominations in the Senate has denied the six-seat panel the four members necessary for a quorum. 'At this point, (McCain) is in the matching fund system. Right now, there is no mechanism for the commission to turn off the spigot,' said Marc Elias, a campaign finance lawyer who represented the aborted presidential campaign of Democrat Chris Dodd."

Is this accurate? And if so, is there a difference between what you call "decertify" and the process by which the FEC can allow a candidate to withdraw from the system?

Once the FEC approves funds, they are paid out of the treasury, beginning on January 1. In other words, McCain applied for the funds, agreeing to certain conditions. The FEC approved his request. Effective January 1, the Secretary of Treasury is required, by statute, to pay funds to McCain as they become available. The law allows the FEC to decertify a candidate who has failed to comply with the law, but makes no provision for a candidate to change his mind once the "matching payment period" has begun (January 1). However, the Treasury can't give the candidates their subsidies until it has money in the account (it will get it as tax returns are filed this spring). Clearly, when this law was passed in 1974, no one thought the Fund would not have enough money to pay. It lacks the money because only about 9% of taxpayers check the box to provide the government subsidy. Anyway, it is all left unclear.

Mark Elias, who in the article says McCain can't withdraw, has an incentive to take that position because he is a prominent Democratic lawyer, and if McCain takes the federal subsidy with its attendant spending limits, he will be badly outspent by the Democrats.

McCain's position seems to be that the spigot hasn't been turned on. A better way to put it (continuing to use the analogy) is that the spigot is on, but the water pressure is so low that none has yet flowed. So the McCain position seems to be that they can still get out, and if it's not exactly legal, no one was really harmed.

But note that the reasons many candidates chose last year to reject the subsidy was specifically to avoid these constraints, and because they understood that the fund was likely to be late in making payments. McCain decided that despite these problems, it was still in his interest to take the government money. Now he wants to hedge his bets.

Here's the simple way to cut through all this. Go back to the quotes by McCain's campaign general counsel and the folks at the Campaign Legal Center, which has frequently represented Senator McCain in campaign finance litigation -They state that they are relying on "prosecutorial discretion." That's really the key. You don't need prosecutorial discretion absent something that can be prosecuted.

Substantively, is this a big deal? I'm not sure it is if the candidate is John Edwards, who is in the same boat as McCain. But again, if you're John McCain, basing your campaign on "reform" and "ethics," well, this catches people's eye.

Brad Smith
Professor of Law
Capital University Law School
Capital University website
Center for Competitive Politics website

So apparently there is no affirmative provision in the law for withdrawing from the funding scheme, and raising your own money, even if the FEC can't pay the candidate the funds he is entitled to. This seems to me a deep, pervasive flaw in the law arising from the erroneous assumption made in 1974 when the law was passed that the FEC would always have the funds. It's worth noting that the article says that the Edwards could be damaged by his inability to draw on the funds that were promised.

Is it your position that it would be illegal for McCain to withdraw from the scheme even if the FEC votes to allow it, as in the scenario outlined in the article? Does this mean that the FEC would itself be acting illegally?

I'm not convinced that the statement about "prosecutorial discretion" is an admission that the campaign is contemplating violating the law. It is consistent with the view that (1) the law is unclear and we think that we are on the right side of the law, but (2) even if it's technically illegal for the FEC to allow McCain to withdraw, it would be so absurd to prosecute McCain for violating this inherently flawed law, and withdrawing when the FEC has allowed it, we're confident that in the exercise of prosecutorial discretion no such case will be brought.

I just wanted to give the context in which the statement about prosecutorial discretion appears in the Politico article:

***
Additionally, Elias asserted that, even if McCain doesn’t accept the funds, he’d be subject to the program’s spending limits unless the FEC voted to free him

The law, though, is not entirely clear on the issue.

FEC Chairman David Mason, a Republican, said, “We have some flexibility in addressing the particular situations candidates may find themselves in and – currently – the commission's ability – or inability – to take particular actions. We'll have to address any particular situations when and as they actually occur.”

As long as McCain sends a letter to the FEC asking to withdraw from the program before the funds hit his bank account, he should be OK — even if there’s no quorum to approve it and he subsequently exceeds the spending limit, asserted Paul Ryan, a lawyer with the non-partisan Campaign Legal Center.

Ryan said he “would not be shocked to see the commission when fully reconstituted … exercise its prosecutorial discretion and dismiss any complaint that Sen. McCain or any other candidate has violated the spending limit or other provision of the public financing statute.”
***

Now, to my mind both this passage and the article itself leave something to be desired in terms of clarity. But it's worth noting that the author of the article thinks the law itself is unclear, and that it was in this context that he quotes Ryan. Ryan first says that if McCain requests to withdraw in time, "he should be OK." It seems to me possible or even likely Ryan meant that McCain would be within the law--contrary to Elias's claim that McCain can't legally withdraw even if the FEC votes to free him. Ryan's next statement about prosecutorial discretion is a bit of speculation about one method by which a complaint against McCain would be dismissed if one were to be filed.

...the issue here is not even a violation of the law. Seems not even you care much about it. The "crime" is hypocrisy.

And hypocrisy is, to me, a virtually worthless epithet making very little difference in the grand scheme of things. It has become the refuge of the Left in their attempts to tear down Republicans and discredit conservative ideas. I have no interest in hearing it from one of our own.

Hypocrisy charges in the broad sense you've given it here are almost his campaign's stock in trade.

They that are with us are more than they that are against us.

learn from them and change his ways.

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The Bipartisan Campaign Reform Act is of course what's popularly known as the McCain-Feingold law. But that's not the law this thread is about.

The law is called the Federal Election Campaign Act of 1971, though according to Brad some of the amendments at issue were made in 1974.