We noted this yesterday. But The Washington Post does a good job today in sizing up the situation and its possible mammoth consequences for McCain's campaign.Mr. Honesty, Mr. Straight Talk, Mr. Clean says what to all this business?
There are really two completely separate issues here.
First, McCain opted in to the public finance system for the primaries last year. It meant that his struggling campaign would get $5.8 million in public matching funds in March. Now that he's effectively the Republican nominee, he wants out, because the system entails a spending limit of $54 million through the end of August. He's almost spent that much already, according to the Post.
So the McCain campaign sent the Federal Election Commission a letter (pdf) earlier this month saying that he was opting out. But there's a problem. And FEC Chairman David Mason, a Republican, made it plain in his letter (pdf) yesterday: McCain can't tell the FEC that he's out of the system. He can only ask.
And the FEC, which normally has six commissioners, can't give him an answer until it has a quorum of four commissioners. It currently only has two. That's because the Senate has been deadlocked over four nominees; Democrats insist on a separate confirmation vote for vote-suppression guru Hans von Spakovsky, and Republicans insist on a single vote for all nominees.
The second issue has to do with McCain's tricky loan and whether the FEC will conclude that it locked him into the system. But for now, that's really ancillary to the first issue.
It is a serious issue. As the Post reports, "Knowingly violating the spending limit is a criminal offense that could put McCain at risk of stiff fines and up to five years in prison."
It's really unclear as to what might happen next. McCain's lawyer says he's out of the system and that's that. It's unclear if they'll respond to Mason's letter. And it's unclear if the FEC can do anything or be forced to do anything, without the necessary quorum. It's literally an unprecedented situation.
Note: Hasen cites Mark Schmitt on a certain irony. Pretty much everyone agrees that the public financing system for the primaries is broken -- the spending limits are too low and the payouts are too late (March). As Steve Weissman of the Campaign Finance Institute put it to me, the primary system in its current state is "basically only for losing candidates" -- candidates without the fundraising wherewithal to really compete.
But McCain has refused to support efforts to fix the system, so in a way, he has himself to blame for the fact that the system is so unworkable that he's possibly bent the rules to get out of it.
From Reuters:But at a campaign stop in Indiana, McCain replied with a dismissive "no" when asked if he was concerned by the FEC's letter.See my rundown of the issue here. Essentially what McCain is saying is that since the FEC is effectively shut down, a letter from its chairman carries no weight.
"It's not a decision. It's an opinion, according to our people," he said.
It's a take that drew a sharp analogy from Republican election lawyer Jan Baran, who was quoted by The Washington Post as saying that McCain's position ""is like saying you're going to break into houses because the sheriff is out of town."