by hilzoy

A few days ago I wrote about a loan John McCain had taken out, in which he tried to use his future eligibility for federal matching funds as collateral. Presumably, he did this in order to get the money he needed to keep his campaign afloat without using the matching finds themselves as collateral. And the reason it was important not to use those funds as collateral was that according to the FEC, doing so would constitute "accepting " those funds, and thus subjecting himself and his campaign to the limitations that go with it.

I am not a lawyer, and thus have no opinion about whether McCain's loan violates the, um, McCain Feingold Act, or any other provision of federal law. But I did think that this was a pretty transparent attempt to violate its spirit. Campaign finance laws ask candidates to make a choice: either you take federal money, in which case you are subject to a number of restrictions, or else you don't take it, in which case you are not. Getting a loan by using the matching funds you have not yet received as collateral is a way of trying to have it both ways: essentially, you get to spend your matching funds now, but because the money did not literally come from the government, you can delay a decision about whether or not to accept the restrictions that go with them until later. If you can leverage the money into enough wins to generate contributions, you can pay back the loan and duck the restrictions; if not, you've lost anyways, so you might as well abide by them. That's exactly what campaign finance laws do not want candidates to be able to do.

McCain tried to be tricky about this: he didn't use the matching funds he had qualified for as collateral, but he did use the fact that he could qualify for them at any time. That's why he had to give away his legal right to withdraw from the campaign if he lost: to satisfy his lenders, he had to promise to stay in long enough to actually get the matching funds he qualified for, and to give them first dibs on those funds. Whether or not this violates the law -- a law McCain authored -- I have no idea, but it is certainly an attempt to wriggle out of its requirements, and it ought to put paid, once and for all, to the idea of McCain as a straight-talking man of principle.

Apparently, the FEC has the same questions I had about McCain's loan. The AP reports (h/t TPM):

"The government's top campaign finance regulator says John McCain can't drop out of the primary election's public financing system until he answers questions about a loan he obtained to kickstart his once faltering presidential campaign.

Federal Election Commission Chairman David Mason, in a letter to McCain this week, said the all-but-certain Republican nominee needs to assure the commission that he did not use the promise of public money to help secure a $4 million line of credit he obtained in November.

McCain's lawyer, Trevor Potter, said Wednesday evening that McCain has withdrawn from the system and that the FEC can't stop him. Potter said the campaign did not encumber the public funds in any way. (...)

By accepting the public money, McCain would be limited to spending about $54 million for the primaries, a ceiling his campaign is near. That would significantly hinder his ability to finance his campaign between now and the Republican National Convention in September."

The FEC's letter to McCain is here (pdf); the amount McCain has already spent during the primaries is $49,650,185.36; the exact FEC limits on primary spending are not yet available, but if this were 2007, they would have been $40.89 million, which is considerably less than McCain has already spent. I assume that the AP got its figure of "about $54 million" from the FEC; if so, then McCain has about four and a half million dollars to spend between now and the Convention in September.

One further problem:

"Complicating the dispute is the FEC's current lack of a quorum. The six-member commission has four vacancies and Senate Democrats and Republicans are at loggerheads over how to fill them.

In his letter, Mason told McCain he would need the votes of four commissioners to accept his withdrawal from the system.

"The commission will consider your request at such a time as it has a quorum," Mason wrote.

Without action by the Senate, McCain could be waiting indefinitely. (...)

Potter [McCain's lawyer] said McCain will continue with his campaign and not adhere to the public financing system's limits on spending. Without a full commission, Mason has little enforcement power. Likewise, without an FEC, McCain has no way to appeal Mason's conclusion."

The FEC thinks it needs a quorum in order to approve McCain's withdrawal. But it also needs a quorum in order to enforce its decisions. And as Mark Schmitt said about McCain, "it's pretty clear that his attitude toward the Federal Election Commission on this question is, "Come and get me!""