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BETTING THE SPREAD.
We now have the exact language of John McCain's "second loan," and it is a legal masterpiece, albeit an ethical travesty. Based on the Washington Post report, I inferred that McCain had not excluded public matching funds from the collateral for his additional loan. But it's much more complex than that. The second loan, for $1 million, was actually a modification of the first, and so it continued to exclude the certification for matching funds from the loan's collateral. But it included this remarkable addition (which I'm going to quote in full just so no one thinks I used an ellipsis to distort the meaning):
Additional Requirement. Borrower and lender agree that if Borrower [McCain's campaign commitee] withdraws from the public matching funds program, but John McCain then does not win the next primary or caucus in which he is active (which can be any primary or caucus held the same day) or does not place at least within 10 percentage points of the winner of that primary or caucus, Borrower will cause John McCain to remain an active political candidate and Borrower will, within thirty (3) days of said primary or caucus (i) reapply for public matching funds, (ii) grant to Lender, as additional collateral for the Loan, a first priority perfected security interest in and to all Borrower's right, title and interest in and to the public matching funds program, and (iii) execute and deliver to Lender such documents, instruments and agreements as Lender may require with respect to the foregoing.
(Here's the document: http://query.nictusa.com/cgi-bin/fecimg/?_28039612468+0. From this link, you can read the document by page or produce a pdf. Much of it is blurry and boilerplate, until you get to the loan modification agreement starting page 21, which is legible.)
What does this mean? It means that rather than pledge his existing certification for matching funds as collateral for the loan, which would bind him to the system and thus the spending limits, McCain carefully pledged to seek to re-enter the system later, and to use a non-existent future certification as collateral. And while the system is "voluntary," McCain essentially traded away for cash his right to choose whether to participate in the system, and even his right to drop out of the presidential race, allowing the bank to force McCain "to remain an active candidate" in order to reapply for and qualify for funds. He was betting the spread (10 points) on his own primary performance! I don't think it's an exaggeration to say this is a promise to perpetuate a fraud on the American taxpayers: if he no longer intended to seek the presidency, he made a legally-binding promise to pretend to remain in the race just long enough to collect public money to repay the loan.
Is this illegal? Who knows. Note that it took several days of discussion among top lawyers and former FEC commissioners to figure out whether it was even possible to opt out of the public financing system after opting in and qualifying for funds. No one's ever done that. And therefore, no one's ever opted back in, after opting out, after opting in. And therefore, no one's ever borrowed on the basis of a promise to opt back in, after opting out, after opting in. Is your head exploding yet?
What we know is that McCain found a way to use the public funds as an insurance policy: If he did poorly, he would use public funds to pay off his loans. If he did well, he would have the advantage of unlimited spending.
There's a reason no one's ever done anything like this. It makes a travesty of the choice inherent in voluntary public financing, between public funds and unlimited spending. I've said it before, and I'll say it again: Legal or not, it should bring to an end whatever tiny thread of credibility John McCain still has as a straight-talker or reformer of the political process.
-- Mark Schmitt
COMMENTS (223)
Clever.
Posted by: Senescent | February 18, 2008 1:52 AM
The audacity to say *anything* about Obama's own statements vis a' vis public funding, after he pulled this stunt; well, the guy has cojones, that's for sure.
Posted by: MattD | February 18, 2008 2:45 AM
No one in the traditional media will pick up on this because it doesn't fit the established narrative. If St. McMaverick did it, it must be OK.
Posted by: MarvyT | February 18, 2008 8:25 AM
Unbelievable, and too unbelievably complicated for most people to understand.
aimai
Posted by: aimai | February 18, 2008 10:39 AM
I'd like to take exception to a small aspect of this post, which is that what McCain did is "complicated." This is not complicated, though it may be unprecedented. I'm sure there's not a snowball's chance in hell of the media covering this, but don't let them off the hook for its being complicated. To me it reads like a standard loan covenant written to secure a prospective revenue stream to a lender.
Posted by: Marshall | February 18, 2008 10:45 AM
The media doesn't have to pick it up, We can still run ads, and there is no 'we don't do controversial ads' clauses to federal law. Networks HAVE to accept ads by the presidential campaigns.
Posted by: Soullite | February 18, 2008 11:54 AM
I get what you're saying, but the larger truth is that until all candidates are limited to public funding or until there are real political ramifications with voters for raking it in, no real campaign finance reform is possible.
It is, thus far, a failed effort. I'm not convinced anyone can portray McCain as *particularly* evil in this regard, and it seems to me he's taken it on the chin a few times for his efforts.
Posted by: Anonymous | February 18, 2008 2:24 PM
I just want to say that this is an incredibly well-written post that explains the legal gymnastics in a nutshell.
Hopefully this accurate telling of what is going on will make the rounds.
Like many things, it is not super complicated, but very difficult to explain to those who don't already have a strong grasp of the subject matter. In any event, this is truly a great piece of journalism, that is, an effort to inform people of what is going on. Kudos to Schmitt and TAPPED.
Posted by: abject funk | February 18, 2008 3:02 PM
Great post, excellent writing and explanation. Jaw-dropping, IMHO. Hope this gets picked up.
Posted by: bobmatnyc | February 18, 2008 6:37 PM
It's a fact that the media says things "are complicated" when they don't want to talk about them.
There are simple enough ways to present even the most complex things.
How about "John McCain promised to get public financing to payback a campaign loan if he couldn't raise it in donations" ?
Simple enough?
Posted by: Josh SN | February 18, 2008 6:46 PM
On further thought -- incredible that a lender could have required him to stay in an election. Seems to me that this completely suborns the political process. I could see a scenario where McCain was forced to stay in the race to repay the loan, essentially collecting votes on a fraudulent basis (not to mention damaging the party or a candidate he favored were he not able to win — say if Huckabee and Romney were closely matched -- not an unlikely scenario under other circumstances). Seems highly unethical if not unlawful.
Posted by: bobmatnyc | February 18, 2008 6:57 PM
Has eveeryone forgotten about "The Keating Five"? Why were they called "The Keating Five"?
Posted by: Anonymous | February 18, 2008 10:02 PM
Complicated? This isn't any more complicated than things that reporters generally report on. Heck, it's a LOT less complicated than the primary process.
How's about "To get a loan from a bank, McCain promised the bank he'd collude with them to force the American taxpayer to pay the loan back if he couldn't."
Or "it appears he went into the campaign finance system with every intention of violating the spirit, if not the letter, of the law."
Posted by: anonymous | February 19, 2008 1:03 PM
Can I get a loan based on my willingness to vote for a particular bill, a position which will undoubtedly get me 100s of thousands of dollars in corporate contributions from the effected industry?
Posted by: Josh SN | February 19, 2008 2:02 PM
Headline: "McCain Has Cake And Eats It, Too"
Byline: "How to use restricted taxpayer funds to raise unrestricted campaign donations"
Seems pretty straightforward to me.
Posted by: Anonymous | February 19, 2008 5:04 PM
er, Subhead, not byline. You get the idea, anyway.
Posted by: Anonymous | February 19, 2008 5:08 PM
Obama is CORRUPT, his slogan of change an ILLUSION.
1) A houseowner wants to sell both a house and adjoining land. Obama can afford to buy only the house. No problem, the criminal Rezko to the rescue. Rezko pays full price for the land, whereas Obama gets a discount of $300,000 on the house. Nice to have criminal friends like this!!! (reference ABC News)
2) Exelon Corporation had not disclosed radioactive leaks at one of its nuclear plants in Illinois. Obama, a senator for Illinois introduces a bill to make disclosures mandatory. Seems like Exelon doesn't like it. Each draft of the new bill by Obama goes more and more towards Exelon till disclosures end up being "voluntary". What gives? How about $250,000+ donations by Exelon to Obama's campaigns!!! Obama is not change, he is WASHINGTON BUSINESS AS USUAL. (reference New York Times)
People need to stop believing their fantasies about Obama and realize that Hillary is the one who has been fighting for them all along. All the way back to 1993 when she tried to introduce universal health care (before it became politically fashionable).
Posted by: Jaycal | February 19, 2008 5:47 PM
Shouldn't surprise anyone, really. McC has a gift for being, as the upper stratum likes to put it, "good about" money. The most important discovery of his life was that it's as easy to love a rich woman as a poor one.
Posted by: penalcolony | February 19, 2008 5:49 PM
MattD:
The audacity to say *anything* about Obama's own statements vis a' vis public funding, after he pulled this stunt; well, the guy has cojones, that's for sure.
I imagine that's why we haven't heard anything out of the McCain camp on this subject since the story broke.
Posted by: EH | February 19, 2008 5:50 PM
Almost kinda like welfare fraud, isn't it?
Posted by: MB | February 19, 2008 6:32 PM
Just a minor quibble: it wasn't the Bank (i.e., the lender) that would force McCain to stay in the race. It was the McCain Campaign Committee (i.e., the borrower) that would force him to stay in. The Bank held no sway over him; the Campaign Committee, on the other hand, would have been in breach of contract if it had not been successful in convincing McCain to stay in the race.
Posted by: allsburg | February 19, 2008 6:42 PM
How would this provision be enforced? Is their a sanction specified?
Posted by: jhm | February 19, 2008 7:15 PM
This is the same thing the conservatives have done to big business:
Socialize the risk, privatize the profits.
Only in this case, the profit was election victory.
Explain to me how this isn't exactly what McCain just did?
Posted by: jvill | February 19, 2008 9:42 PM
It looks like the Schmuck Talk Express learned a few creative financing tips at the hand of Charles Keating.
Posted by: SocraticGadfly | February 19, 2008 10:14 PM
Anonymous No. 1: Perhaps McCain isn't especially "evil," but the Schmuck Talk Express is HUGELY hypocritical.
Oh, speaking of that, notice how little he's talked about global warming recently?
Posted by: SocraticGadfly | February 19, 2008 10:51 PM
Headline:
McCain's Free Lunch
Posted by: omar | February 19, 2008 11:08 PM
No MacCain supporter here, but
What I'm not getting in the dust up is this: had public matching funds been available in a timely fashion than there would have been no need for the loan. Right?
So, yes, he gamed the system. But only to collect the money sooner than the FEC could/would release it. Is this right?
Posted by: Charles | February 20, 2008 12:21 AM
Charles, No.
Posted by: SocraticGadfly | February 20, 2008 1:08 AM
What I'm not getting in the dust up is this: had public matching funds been available in a timely fashion than there would have been no need for the loan. Right?
**************
As I understand it the point was to get the money without committing himself to public funding restrictions unless he'd already lost.
So, yes, he gamed the system. But only to collect the money sooner than the FEC could/would release it. Is this right?
****************
I don't think that "only" holds up, but even if it did would it be better for him to have sold his honor at such a bargain rate?
Posted by: aleks | February 20, 2008 9:02 AM
Anyone gotten Feingold to comment on this?
Posted by: Anon | February 20, 2008 9:03 AM
What really sucks about this is that it looks an awful lot like bribery but it probably technically isn't. You give me a million bucks to stay in the race and advocate your position. Suppose he made this arrangement with a campaign contributor--in writing? The bank that agreed to this has bought and paid for this guy. Does anyone think that if the president of the lender called in a favor that the call wouldn't be returned? (Of course, there's no quid pro quo except for the promise to run, but not to take any official act. That's why i'd guess it's probably legal.).
Whatever his campaign paid by the hour, it was worth it. Hats off.
Posted by: rumpole | February 21, 2008 11:02 AM
The problem with your analysis is that you assume he would intend to drop out after losing the next primary by more than 10 pts. As he had no intention of doing so, your logic collapses like a house of cards. Nice try, though. I'll look forward to your next manufactured conspiracy regarding our next president.
Posted by: truth | February 21, 2008 4:19 PM
Actually, "Truth", whether he would intend to drop out or not is irrelevant. So long as he didn't win or come within 10% of winning the next primary or caucus, McCain would have to apply for the federal money.
The issue here is whether or not McCain was essentially taking the federal money (or the benefit of having the federal money) without actually subjecting himself to the spending limits required by law. That is clearly the case simply from reading the language in the loan agreement.
allsburg, you're definitely correct that the campaign committee would have to enforce the provision about McCain staying in the race. I wonder why the bank would agree to what is a terrible provision for them (the campaign committee would not have been a particularly useful deep pocket if things unraveled). I wonder if there is a side letter between McCain and the committee requiring his commitment to stay in if such circumstances arose.
Posted by: Anonymous | February 21, 2008 4:36 PM
"Is this illegal? Who knows. Note that it took several days of discussion among top lawyers and former FEC commissioners...."
Well, clearly you do not know what it means.
As for "top lawyers and FEC commissioners," the commission is supposed to have 6 members. Currently it has only two, including Chairman Mason. As such, it cannot seat a quorum. It can do no official business. This letter is a joke.
Posted by: WylieD | February 21, 2008 10:00 PM
Wsn't McCain still "in" when the loan was renegotiated?
The loan was renegotiated on Dec 18, 2007. McCain sent the "I'm rescinding my public funds certificate" letter to the FEC on February 7, 2008. The updated loan agreement was sent to the FEC on January 31, 2008, a month and half after the modification was entered into.
Posted by: cboldt | February 22, 2008 3:34 PM
-- What we know is that McCain found a way to use the public funds as an insurance policy --
The possession of the public funding certificate was put to use in obtaining ballot access in Ohio. Without looking at the law, but making inferences from news reports, ballot access is conditioned on either obtaining a certain number of qualified signatures on petitions, or on having an FEC certificate.
Posted by: cboldt | February 22, 2008 3:43 PM
McCain is a hypocrite. He has lost my vote. The same old politics with the same old man is not going to cut it. I wonder which between Castro and McCain is going to join Karl Marx?
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