Campaign Finance Bites the Hand That Made It

February 26, 2008 1:26 PM

Last year, as McCain's campaign seemed stumbling into the grave, it applied for federal matching funds for the primary season. After Super Tuesday, McCain withdrew from the system. Or did he? If he didn't, he's capped at $54 million to spend till September -- and he's already spent $50 million of it. Former FEC Chairman Brad Smith tells, in bravura detail, the whole whirling story. (via Election Law Blog)

McCain attempted to withdraw not having received any matching funds. Receiving any funds would have locked him into the system. He did, however, obtain a loan in December 2007 which pledged as collateral -- not the federal matching funds he had already qualified for, as that would legally lock him into the system -- federal matching funds which he would receive as a result of pledging, in the loan documents, to reenter the matching funds system if he dropped out of it in December and subsequently did poorly in New Hampshire! Now there's a question of whether he can actually withdraw or not.

Meanwhile, the FEC lacks a quorum to make a ruling, and Obama put a hold on nominees who might have given it a quorum. And there are other complications, like how entering the matching system might have put McCain on the Ohio ballot at minimal expense.

Brad Smith's conclusion: the law is way too complicated.

posted by shivohum (32 comments total)

Ah -- and one of two senators most known for "campaign finance reform," diddling with its provisions.
posted by ericb at 1:32 PM on February 26

Why do I suspect that this will have little bearing on how much money is actually spent by or on the behalf of the McCain campaign?
posted by briank at 1:34 PM on February 26

Josh Marshall at TPMtv attempts to shed some light on the subject. [video]
posted by Captain Planet's Green Mullet at 1:40 PM on February 26

Is it fair to characterize McCain's gambit as incredibly cynical?
posted by goethean at 1:41 PM on February 26

Obama put a hold on nominees who might have given it a quorum

Actually, no. Obama does not equal "The Senate."

More here: As of January, 2008, four of the six Commission seats were vacant, as the Senate failed to vote on full terms for recess appointees and nominees Hans von Spakovsky (Republican), Robert Lenhard and Steven Walther (Democrats) to the Commission. This Senate failure was due to partisan fighting over the nomination of von Spakovsky, who had served on a recess appointment from January of 2006 through December of 2007.
posted by mattbucher at 1:42 PM on February 26

Yeah, I’d like to see a source for more information on Obama’s role in the FEC nominations hold-up, but I seriously doubt that he alone could prevent a confirmation.
posted by breaks the guidelines? at 1:50 PM on February 26

Isn't this the law that Bush signed because he thought it was unconstitutional? What a mess.

And it doesn't even matter. If Obama emerges victorious next week, we will learn all about who might not have smoked crack back when, who didn't really go to a madrassa and who isn't a muslim (anymore), etc. Good God, is it ever going to get ugly.
posted by Pastabagel at 1:52 PM on February 26

Hans von Spakovsky is a ridiculous, incompetent figure.
posted by null terminated at 1:56 PM on February 26

Meanwhile, the FEC lacks a quorum to make a ruling, and Obama put a hold on nominees who might have given it a quorum. And there are other complications, like how entering the matching system might have put McCain on the Ohio ballot at minimal expense.

The reason that Obama put a hold on the nominees for the FEC ruling is because republicans are demanding a ruling on all four as a 'package' and one of the four famed GOP Dirty triskster (the absurdly supervillianesquely named) Hans von Spakovsky.

A senate hold can't actually stop things forever, and it's very likely that von Spakovsky would not be confirmed by the democratic senate even without the hold. But let's be clear here, von Spakovsky should absolutly not be an FEC chairman. It would be like putting Rupert Murdoch on the FCC board or Alberto Gonzales in as Attorney General (Or, hyperbolically putting in Zacarias Moussaoui as an FAA commissioner).

Obama is holding up von Spakovsky, and the republicans are holding up the other three.
posted by delmoi at 1:58 PM on February 26 [1 favorite]

More on von Spakovsky
posted by delmoi at 2:04 PM on February 26 [1 favorite]

the real question is, did McCain apply for matching "Muslim robes"?
posted by matteo at 2:04 PM on February 26 [1 favorite]

delmoi's right. At worst Obama is holding up von Spakovsky and one of the Democratic nominees, given that committee members are historically confirmed in pairs. The two remaining unconfirmed nominees are enough for a quorum. McCain should be pressuring Republicans to allow a vote on them. Furthermore, Obama put the hold on the guy for a good reason. So I don't really get the whole "ethical" question there. It would be unethical for Obama to remove the hold, potentially allowing this guy to get confirmed and McCain to flaunt the rules, just to escape this minor (and strange) bit of criticism. I hope he doesn't.

Obama's role is, however, one of the various noted subtleties that makes the whole thing pretty damn funny. The tidbit about how McCain might not have to worry about any of this but for McCain-Feingold is another one.
posted by dsword at 2:17 PM on February 26 [1 favorite]

So I don't really get the whole "ethical" question there.

There's a perceived conflict of interest. Where someone might judge a case where they have a personal stake, they are ethically supposed to recuse themselves. That's the argument, at least.
posted by shivohum at 2:31 PM on February 26

And a weak argument at that. The hold was started for the right reasons, but it should be dropped because the situation surrounding it has morphed into something perceived as unethical? Preposterous.

I'd be disappointed if the Democratic Senate didn't leverage the shit out of this.
posted by butterstick at 2:37 PM on February 26

Wow, he really is a straight-talking maverick!
posted by kirkaracha at 2:49 PM on February 26

I had never heard of Hans von Spakovsky. Is what he did wrong that he advised Arizona that they could require IDs before issuing ballots? Isn't the Supreme Court about to rule that it is ok for states to do that?
posted by Slap Factory at 2:57 PM on February 26

Yes, shivohum, I understand very well the definition of conflict of interest. Perhaps an argument can be made that Obama shouldn't have decided to put a hold on an FEC confirmation when actively running for President. But that's unrelated to the article, to McCain, and to my point.
posted by dsword at 3:09 PM on February 26

he did more than that
posted by caddis at 3:21 PM on February 26

But that's unrelated to the article, to McCain, and to my point.

Your point was that Obama should not be blamed when two noncontroversial candidates could be confirmed and a quorum formed. The Republicans may or may not be willing to do that. Thus, whether or not that is feasible given the political environment, arguably Obama should not be the lynchpin holding the status quo in place. You may not agree with the point, but it is a colorable argument.

Your argument amounts to something like saying that a judge needn't recuse himself on a issue that affects both principle and personal interest if some other judge could decide some other case in a way that alleviates the conflict.

Well, that might or might not happen. Recusal is necessary if the conflict threatens the legitimacy of the decision. The judge would not be entitled to keep waiting and hoping.
posted by shivohum at 4:07 PM on February 26

For my life, I'll never understand why there is a philosophical* disagreement over erring on the side of counting every vote and everyone's vote counting.

I did an LOLVONSPAKOVSKY awhile ago. Enjoy.

*Clearly, by "philosophical," I do not mean "philosophical."
posted by peacecorn at 4:12 PM on February 26 [2 favorites]

It seems like another democrat could take over the hold if they want too. And also Holds can be overruled if there's enough pressure.
posted by delmoi at 4:21 PM on February 26

Prof. Bradley Smith = GOD of campaign finance reform.

His book Unfree Speech is the most thorough destruction of the asinine arguments put forth in support of CFR.

There is only one solution that is reasonable: 100% disclosures and let sunshine do its cleansing work. Every other attempt to limit our system leads to more and exacerbated problems and unintended negative consequences. It is therefore bad on a policy/pragmatic level, as well as being questionable on the constitutional level.

He has pissed off both Democrats and Republicans, so you know he is doing something right.
posted by dios at 4:40 PM on February 26 [3 favorites]

It ultimately won't matter much whether McCain is able to get out of federal financing or not, because when it comes to financing his campaign, he's already lost the war.

Republican political strategist Patrick Ruffini estimated Barack Obama as being on track for making $60M in February.

Well, I've seen Ruffini's figures and methodology for this, and frankly, he's using old data.

The Obama campaign has an end-of-the-month drive for 1 Million donors, and only has about 8K left to go. They already have over 810K new donors since January, which, when you subtract the 256K donors Ruffini mentioned for January, equals nearly 560K new donors in February.

Multiply that by an average of $140 as Ruffini does, and you get about $80 million for February, over twice what the Obama campaign brought in during January.  No, I am not saying that Obama will raise that much money for the month, but it does seem quite possible. 

The number of Obama donors has been doubling every 15 days, and who knows how much bigger Obama's list of donors might get, especially if his campaign rolls up Clinton's contributors and fundraisers. Just how viral is his campaign, and how far can it grow before slowing down, especially once Clinton backs out of the race?  

If it's one million people by the end of February, could its viral growth lead it to become two million next month, or maybe four million the month after that? In a country of 300 million people, just how much room is there realistically for Obama's base of donors to keep doubling?

Ruffini, As a Republican, Ruffini is very concerned about the possibility of McCain being outspent 3-1, and Obama actively campaigning in 25 states rather than McCain’s 15-20.

"Right now, it is not the case anywhere in the Republican Party that upper campaign leadership is concerned about this as an overriding strategic and existential challenge for the party. They should be."

Frankly, if I were him, I would be more concerned that Obama's snowballing growth of contributors just cannot be caught up to by McCain, who lacks grassroots and is far, far behind on the online fundraising growth path. McCain could find himself tied up doing big money fundraisers just to stay marginally competitive, while Obama speaks to tens of thousands of voters.

The real nightmare for Republicans is, what happens if Barack Obama outspends them by *more* than a 3-1 margin, with national advertising and a fully funded grassroots campaign in all fifty states?
posted by markkraft at 5:44 PM on February 26

I find this almost breathtaking. I mean, after eight years of Bush, you'd really think there wasn't any possible way that was more ballsy than already done to break the wall.

And what does McCain do? He breaks a law with his name on it.

God bless you, goddamn lunatic crazy man.
posted by XQUZYPHYR at 6:13 PM on February 26 [2 favorites]

The real nightmare for Republicans is

You know, if you're going to cross-post blog entries as comments, at least just pick one thread and leave it at that.
posted by cortex at 6:44 PM on February 26

It's not like Obama had a magic prophecy pipeline to Miss Cleo and predicted ahead of time that McCain would use fancy lawyering to get himself a $5 million loan and that this loan would help propel McCain to his party's nomination. I've heard of Obamamania, but even Obama Girl isn't ditzy enough to think he has psychic powers.
posted by jonp72 at 6:47 PM on February 26

shivohum,

I think the analogy is a little off. A more appropriate analogy might be that a judge shouldn't have to overturn an order simply because somebody who was running against him decided to violate it after the fact. My point was essentially that such a judge taking positive action to overturn his own ruling (again, made well before any perceived conflict existed) in the face of criticism represents its own conflict of interest. My point is that, if recusing himself, Obama should not be withdrawing decisions long made.

Beyond that, his hold has no legal force. Not only could the Republicans nullify any consequences that Obama's hold might hypothetically have on McCain, but Harry Reid could simply choose to ignore the hold. So, going back to the judge analogy, it's more like a respected judge wrote an article for a newspaper that others agreed with, and because of the actions of those people, an opponent of the original author later ran into completely avoidable trouble. (Ok, I'll agree that it's a little more complicated than that).

I'm pretty harsh on Obama, but it would take a lot to convince me that a Senator is ethically required to actively withdraw previous motions simply because an opponent got himself into hot water. If Obama had made the hold last week, I could definitely see a conflict. I really think the argument that he shouldn't have been messing with FEC business when running for president would hold more water.
posted by dsword at 8:01 PM on February 26

My point is that, if recusing himself, Obama should not be withdrawing decisions long made.

It's a good point. But there's a question about whether the hold is a "decision[] long made" or is a continuous sort of decision, akin to, for example, jailing a journalist for contempt for refusing to reveal a source. No one would suggest that once made, such a contempt order should not be withdrawn if the judge suddenly suffered a conflict of interest.

Not only could the Republicans nullify any consequences that Obama's hold might hypothetically have on McCain

Now here I'm just unfamiliar with Senate procedure. I thought only the majority leader could bring legislation to the floor. Is that not so? The Republicans could bargain with Reid to bring the nomination to the floor, of course, but that's all they could do, no?

Harry Reid could simply choose to ignore the hold.

And piss off his future president? ;) Seems a little dangerous to me...
posted by shivohum at 9:49 PM on February 26

And piss off his future president? ;) Seems a little dangerous to me...

He refused to agree to holds on the horrid telecom immunity laws from Dodd (The hold was from Dodd, the laws from fellow democrat Jay Rockefeller), which Obama opposed.
posted by delmoi at 10:14 PM on February 26

He has pissed off both Democrats and Republicans, so you know he is doing something right.

Just like Bin Laden!
posted by delmoi at 10:16 PM on February 26

Hate Radio Upset That John McCain Doesn’t Hate As Much As They Do
posted by homunculus at 9:15 AM on February 27

But if a lawyer of his ability representing the almost certain presidential nominee of a major party can end up in such arcane disputes, what do these laws do to average citizens seeking to participate?

Average citizens have no problem with these laws because they aren't trying to play both ends? McCain was attempting to have the tax payers pick up the tab for a possible unsuccessful campaign to the last possible second. To the point that funds were authorized but not payed out. Note it's the US goverment doing the authorizing, still one of the best backers of future money there is. All the while using the matching funds certification to short circuit his way onto the ballot in Ohio. If I was the other candidates I'd be pissed right off.

It is hard to imagine a more wasteful government program than taxing citizens to pay for political campaigns. The system is an earmark for "good government" types that ought to go. If these two lessons can be learned, something good will have come out of this flap du jour.

And this little jab at Canadians right at the end was a little weird.
posted by Mitheral at 5:40 PM on February 27