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MCCAIN'S LONG DARK PERIOD.
Last summer, when he was out of money, John McCain agreed to accept public financing for his primary campaign -- matching funds that require accepting a limit on total spending in the primaries and on spending in each state. He, John Edwards, and several long-gone candidates were officially granted public funds, in December, but have not yet received the cash, though McCain has borrowed in anticipation of receiving $5.8 million in March.
Now that he is the front-runner, McCain is surely tempted to escape that commitment, and raise private funds rather than accept the constraints of the public system, but The Politico reported Tuesday that "it could be tougher getting out than it was getting in." (Hmmm, a little like Iraq, perhaps?):
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. [There are only two commissioners at the moment.]
“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.
On the other hand, Paul Ryan of the Campaign Legal Center (whose founder, Trevor Potter, happens to be the McCain campaign's lawyer) argues that as long as McCain sends the FEC a letter opting out of the public funds, he can ignore the limits.
MORE ...Ryan is arguing for a gamble -- ignore the limits and hope that when the FEC is eventually reconstituted, it will "exercise its prosecutorial discretion and dismiss any complaint" over a plain violation of the law.
Assume Elias is right. Or that the McCain campaign for other reasons still needs the public money? The consequences for McCain -- especially in a match-up with Barack Obama -- are huge. McCain had spent $39 million by the end of last year. The total spending limit in the primaries for candidates who accept public funding is -- according to the FEC -- "approximately $50 million." Now that the primaries are underway and he's buying airtime, McCain will surely hit that limit soon, and may have hit it already.
If that happens, he will have no ability to raise or spend money until he receives his first public financing payment for the general election, after he is confirmed as the nominee at the Republican convention. From the day he hits the limit until September 4 -- as much as seven months -- will be a "dark period," when Clinton or Obama, who are not limited by the primary public financing system, will be free to keep raising and spending money, and defining McCain while he is silent. Note that it was the dark period that doomed Bob Dole's 1996 campaign, leading George W. Bush to be the first to opt out of public financing, in 2000.
The simplest way to avoid the dark period is to refuse public financing for the general election as well, which is a completely separate system. No one's ever done that, but the $85 million in public money for the general election can easily be made up with private money, and doubled or tripled, especially for the Republican nominee.
But there's a problem: McCain signed a pledge last year to accept public financing in the general election if his opponent did so. Only one Democrat signed the same pledge: Barack Obama. So if Obama's the Democratic nominee, that avenue is foreclosed.
The second way to avoid the dark period is to let outside groups pay for the campaign. That would be the 527 committees that were first popularized by Democrats in 2004, who were worried about a dark period themselves. (A problem that was solved when John Kerry opted out of public funds, allowing him to keep spending through the convention.) But McCain's crusade against 527s has been so fierce that he can hardly say, "never mind."
A third way to resolve the whole question, I suppose, is to end the partisan dispute that prevents the FEC from forming a quorum. That could be done by the White House, if it withdrew the nomination of vote-suppression hack Hans von Spakovsky -- whose appointment has been blocked by none other than Barack Obama.
The tortured webs of campaign finance regulation can ensnare even their own craftsmen!-- Mark Schmitt
COMMENTS (9)
Not so. If you look back to something from I guess it was a WaPo story in March of 2007, McCain and Obama pledged to stick with public funds if they were nominees if the other person chose to do so.
Posted by: MNPundit | January 31, 2008 4:04 PM
MNPundit: And why wouldn't Obama do that for the General, when it would clearly destroy McCain?
Posted by: dbt | January 31, 2008 4:12 PM
MNPundit: That's exactly what I said in the post. McCain and Obama agreed to stick with public funds for the *general election* if the other did so.
But Obama's already opted out of public financing for the primaries. The thing that might prevent McCain from opting out is that it's too late, he's already been certified for the funds. The pledge has nothing to do with it.
Posted by: Mark Schmitt | January 31, 2008 4:19 PM
I think you're missing the point... theoretically, if McCain is stuck in the public financing system for the primaries, he could avoid the "dark period" by opting out of the public financing system for the general. Obama has opted out of the public financing system for the primary, but that doesn't mean he can't opt-in for the general. If he does so and McCain expects to live up to that pledge, then he would also have to opt-in for the general and therefore wouldn't be able to spend any money during these several months due to having opted in to the public financing system for BOTH the primary and the general.
Posted by: Scott | January 31, 2008 4:30 PM
America needs adequate campaign spending limits now! Public financing of political campaigns is a band-aid solution.
Posted by: Gene Silvers | February 1, 2008 10:06 AM
This assumes that McCain would actually honor a promise. I can see him doing whatever gives him the most money, coming up with some hokey logic to rationalize and his buddies in the MSM going right along.
Posted by: Dennis_D | February 1, 2008 11:21 AM
I simply wanted to clarify, for the record, that my position on Sen. McCain's situation was mischaracterized by Ken Vogel in his Politico piece. Fortunately, I’ve saved the email exchange with Ken if anyone wants to see proof of my claim. In a nutshell, I did not tell Ken that Sen. McCain “should” be let off the hook here. Instead, I told him that I wouldn’t be shocked if the FEC allowed Sen. McCain off the hook. The FEC has a track record of allowing great flexibility in its application of the public financing laws to candidates. The best recent example is its Advisory Opinion issued to Sen. Obama last year (AO 2007-03).
Mark Schmitt, of course, had no way of knowing this and I don’t mean to imply that Mark mischaracterized my position. But I did want to set the record straight.
Posted by: Paul S. Ryan | February 1, 2008 3:32 PM
Here is what Sen. Obama actually said. It's important to be precise here.
In a statement issued yesterday, Senator Obama's campaign said, "If Senator Obama is the nominee, he will aggressively pursue an agreement with the Republican nominee to preserve a publicly financed general election."
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