I think I might have missed the significance of Fred Wertheimer's statement about John McCain's tangle with the FEC.
The shut down of the Federal Election Commission has taken center stage because there is no functioning agency to deal with the issue of whether bank loans taken out by Senator John McCain (R-AZ), and the collateral provided for those bank loans, means that Senator McCain cannot withdraw from the presidential primary public financing system and is bound by its spending limits for the rest of his primary campaign.
So -- In Wertheimer's opinion, McCain can't opt out until the FEC decides whether he can?
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I missed it too, in my comment on your earlier post. But I still think it misses the real issue. There are two separate questions here. The first is whether McCain's shady use of the prospect of public funding as collateral amounts to a use of public funds - and thus irrevocably commits him to the public financing system. Wertheimer is saying, in essence: I don't know, but until the FEC rules, we have to presume that it's so.
But there's a second issue, which is whether any candidate can withdraw from the public financing system without the explicit approval of the FEC. The currently serving commissioners have said that the answer is no. There's much less ambiguity on this second point, and Wertheimer ignores it entirely.
easonable people can disagree on whether McCain's use of the prospect of public funds as collateral constituted a technical violation of the law, although it was plainly in violation of its spirit. That's why McCain's position is not crazy - he's saying, in essence, I have sound legal advice telling me this is alright, and there's no quorom on the FEC to tell me for sure one way or the other, so that's what I'm going to do. (The issue, really, is one of ethics - is that a consistent with his standing as an advocate of clean politics? - more than it is one of law.)
But on the second point, there's much less ambiguity. He committed to accepting public funds. The FEC has told him that only it can release him from that commitment. It may be that a quorom would release him, or that it would rule in favor of his unilateral withdrawal. But whereas there is no precedent to bind McCain in the first instance, because no one's been creative or desperate enough to try his tactic, there are sound precedents in the later instance. In the absence of a ruling to the contrary, McCain knows damn well that he's bound to wait for an FEC decision releasing him from his commitment. And that has nothing to do with the loan, which has drawn the most attention.
I applaud Wertheimer for zeroing in on withdrawal as the crux of the dispute, even if he misses the most crucial point. I hope that the media starts to do the same. The loan is more ethically dubious - it speaks to McCain's willingness to jettison his principals when expedient. But it's the withdrawal that holds far more legal peril for McCain and his campaign. If an enforcement action where ever brought, it would be vastly more difficult for him to argue that he acted in good faith in withdrawing than in drawing up the loan covenant. There's just no good reason to believe that he can withdraw unilaterally, and if the absence of a quorom on the FEC is coming back to haunt him - well, he and his party have it within their power to break the deadlock.
Of course, there's a reason you missed this part of Wertheimer's statement.
Posted by FlyOnTheWall | February 28, 2008 8:51 AM