Critical Evaluation
John Mccain is trying to duck his own finance reforms. Buyer beware.
2008-03-31
By DeAngelo Starnes

Now that the mainstream media’s fangs seem to have drained the blood from the Jeremiah Wright story, it directs its attention to Hillary Clinton’s anecdote about having to dodge sniper fire during a 1998 trip to Bosnia. Certainly, if Mrs. Clinton will fabricate this kind of story to artificially inflate her activities as First Lady by transforming a feel-good USO trip into a Jerry Bruckheimer action movie, she might possess the proclivity to fabricate an issue that’s important but not critical into Armageddon for selfish gains. We get that. But she’s been doing that throughout this campaign. And we have yet to see her get skewered for it on the level Barack has over his pastor. The bigger story, which I believe deserves the fang treatment, is what’s going on with John McCain and the Federal Elections Commission.

Back in August, McCain’s candidacy was floundering and needed cash. Indeed, he lagged far behind Guiliani in fundraising, which had to be a shock because McCain seemed pre-ordained to be the Republican nominee this year. To get himself back in the game, he applied to the FEC for public financing in the form of matching funds from the Presidential Campaign Election Fund.

Basically, the matching funds program is akin to financial aid. Once a presidential candidate has established broad support by raising at least $5,000 in at least 20 states, the U.S. Treasury will match money spent during the campaign. The catch is there is a cap on the amount of money a candidate can spend during the primary season. The primary season ends the date the candidate receives the party’s nomination at its convention. For McCain, his primary season ends in September 2008.

The amount of the cap is statutorily established but allows for cost of living adjustments. Additionally, the base limit is provided a twenty percent increase for fundraising costs with another fifteen percent granted for legal and compliance costs. So how much money is McCain limited to spending before the Convention? $56,757,500. Wanna know how much he’s spent as of February 29, 2008? $56,916,682.

When McCain entered the program, he became bound by the spending limit because he was required to agree he wouldn’t spend more than the limit allowed. He breached that agreement and still had six months to go.

McCain must’ve known he was getting close to the limit, right? Of course, he did. On February 6, 2008, he sent a letter to the FEC providing his intent to withdraw from the Presidential Primary Matching Payment Program. But he can’t unilaterally withdraw like that. The law requires that the FEC has to vote on it, which is what the FEC Chair told him by letter dated February 19, 2008. However, the FEC can’t do that because it doesn’t have enough commissioners to comprise a quorum that would make the vote legally binding. Reason it doesn’t have such a quorum? Because the Senate has deadlocked over President Bush’s appointment of commissioners because these individuals would be able to undercut the campaign finance reform bill passed by Congress back in 2002. Guess who cosponsored that bill and claims it as a cornerstone achievement? Hint: the bill is widely known as McCain-Feingold-Cochran Campaign Finance Reform Bill.

Even if the FEC could conduct a vote, it couldn’t grant McCain’s request. In order to withdraw from the program, a candidate must demonstrate that (s)he has not received matching funds from the program and that (s)he hasn’t pledged the fact that (s)he’s due to receive those funds as collateral to secure private financing. Back in November, McCain applied for a four million dollar loan with Fidelity Trust Bank of Bethesda, Maryland where he used his Matching Payment certification as collateral. In December, he went back to the bank to increase the loan using that same certification as collateral. He hasn’t spent any federal money but he used his entitlement to it as collateral to help raise private financing.

I’m sure you guessed McCain declared he hadn’t used that entitlement to secure private financing when he notified the Commission of his intent to withdraw from the program. However, the FEC Chair had a copy of the November loan application along with its December amendment, and basically told McCain, he’s got some ‘splainin’ to do.

Truthfully, the penalties for his ongoing violations won’t kill him in a financial sense. He would have to repay any public monies he spent on his campaign, of which there are none, and fines, which are miniscule compared to the money he’s going to be raising.

The real damage may come in the court of public opinion. First, McCain is now a violator of the law. How can he hold office as the number one person sworn to uphold the law of the land if he knowingly violated it and continues to do so until the convention? Second, he’s a liar because he knowingly submitted a false statement in to the FEC, most likely hoping it would look the other way and allow him to opt out of the program. Ironically, this lie actually may compound his legal problem if it can be construed to indicate that he knowingly provided false information to a federal agency in connection with an application for federal monies or as part of an investigation. This might be a stretch but would you want to have to walk that tightrope while you’re running for office? Finally, he’s a hypocrite. He’s supposed to be a champion of campaign finance reform - one who believes that special interest money should be severely restricted. Yet, here he is trying to extricate himself from the very notion and principle that props him as a "straight-shooter." More serious, it shows him playing games with the system in order to gain an advantage that he wouldn’t have had without the Matching Payment Program. Ultimately, these all add up to whether McCain can be trusted.

It reminds me of a time when I was forced to duck-walk the football field my sophomore year in high school because I was late to practice. I had a legitimate excuse, or so I thought. But one of the senior captains stoically told me, "Rules be rules."

The media seems to prefer trivial issues during this primary (e.g. the amount of money Edwards spends on haircuts, Kucinich claiming to have seen UFOs, Clinton crying, lack of flag lapels in Obama’s suits, etc.) How about in-depth reporting on McCain’s noncompliance with federal campaign election laws? This noncompliance and intent to remain noncompliant goes to the heart of what kind of president McCain will be, but it’s not a headline? If you Google "Obama and his pastor," you will get to 780 entries before the search engine cries "Uncle" with a prompt telling you that it needs more information before going on. Compare that to a similar search using "McCain and the Federal Election Commission," I couldn’t find 78 entries on this particular issue and that’s a story that’s in the wind since mid-February. How can the electorate make an informed decision when there’s that kind of imbalance in coverage?

We’ve already had eight years of an Administration that refused to comply with rules. Do we want to go through another four or eight under McCain?

DeAngelo Starnes is an attorney and cultural critic based in Denver.  He covered the final season of the Wire for EbonyJet.com. Critical Evaluation is his new regular column.