Dems Push for FEC Probe of McCain

February 25, 2008 11:54 a.m.

The Democratic National Committee filed a complaint (pdf) today with the FEC concerning Sen. John McCain’s (R-AZ) campaign financing problem. So where do things stand then? Keep in mind this is an unprecedented situation, so it’s not really clear where things will go next.

The main problem remains: FEC Chairman David Mason says that “a candidate enters into a binding contract with the Commission” when that candidate opts in to the public financing system, so McCain will just have to wait until the FEC is up and running again to be formally released (remember that a logjam in the Senate over four nominees for the FEC has tied its hands). To which McCain and his lawyers say phooey: It’s a candidate’s “constitutional right” to opt out.

Very soon, the McCain campaign, already spending its way past $50 million, will be in violation of the public campaign financing system’s $54 million spending limit for the primary (that cap lasts through the party’s convention). Barring a miracle in the Senate, the FEC will remain unable to act officially with only two commissioners.

The DNC’s complaint adds another variable to the mix. After receiving the complaint and giving two weeks for a response from McCain’s campaign, FEC staff will ultimately give a recommendation to the commissioners whether to initiate a formal investigation. But … since the FEC doesn’t have a quorum, i.e. the four commissioners needed to act, the FEC could not approve an investigation.

From there, things could find their way into court. “The DNC may simply be setting the stage for a federal lawsuit to make John McCain obey campaign finance laws,” observed David Donnelly of Campaign Money Watch.

The McCain camp has said that they will respond to Mason’s letter from last week. They’ll do their best to explain why the campaign’s very clever bank loan did not lock McCain into the system by using promised federal matching funds as collateral. But even if Mason were to conclude that McCain should be able to opt out (a big “if”), he’s made clear that McCain cannot opt out without the FEC’s say-so. So things seem likely to continue to get more and more interesting regardless of what happens.

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