ProgressOhio

According to the latest Federal Election Commission report, John McCain has now spent $58.4 million dollars on his Primary (Pre General Election) Campaign. 

However, in August of 2007, McCain applied for The Federal Matching Payment Program understanding the conditions of the program that a candidate who participates must submit to a government audit of his campaign, and more importantly, limit his overall primary spending. 

This year that limit is about $54 million which puts McCain in violation of the very campaign finance laws he helped to write. 

However, McCain now contends he is no longer in the program and therefore not subject to these rules.

In February of 2008, McCain apparently decided he didn’t need public financing after all and sent a letter to the FEC and the US Treasury informing them of his unilateral decision to withdraw from the program.

FEC chairman David Mason responded in a letter to McCain, informing him that he can't withdraw from the program without the permission of the FEC.

Bradley Smith is one of the nation’s foremost experts on campaign finance law. He has recently completed a term as Commissioner on the Federal Election Commission, resigning as of August 21, 2005. Commissioner Smith served as Vice-Chairman of the Commission in 2003 and Chairman of the Commission in 2004.

Mr. Smith describes the Matching Funds program:

The Federal Government has two programs for providing tax dollars to presidential  candidates for campaign purposes, both administered by the Federal Election Commission.  The first is the primary “matching funds” program.  Under this program, a candidate who raises at least $5000 in contributions under $200 in each of 20 states is eligible to apply for matching funds.  If approved, the federal government will match individual contributions to that candidate up to the first $250 of the contribution.  So if you give a candidate participating in the program $50, the Feds give him another $50.  Give him a total of $250, he gets $250.  Give him a total of $1000, he gets $250. 

Although the funds that are “matched” can be raised anytime, the FEC starts paying out the money on January 1 of each election year.  The catch for a candidate participating in the plan is that he must submit to a government audit of his campaign, and more importantly, limit his overall primary spending. This year that limit is about $54 million. 

Primary spending is defined to mean all spending prior to the point at which he is formally nominated at his party’s convention, which for the Democrats this year is the last week in August, and for Republicans the first week in September.

Participation in the program is voluntary – the Supreme Court has ruled that candidates have a constitutional right not to participate and be subject to spending limits. 

At first, John McCain was one of several candidates who announced that they would not apply for Federal Matching Funds. 

Then McCain’s campaign hit its early summer implosion. 

McCain’s fundraising was flat, his campaign broke.  Many thought McCain would pack it in.  But McCain cut his staff, focused almost all his resources on New Hampshire, and applied for the matching funds, to “keep the option open.” 

In fact, on August 20 of last year he became the first candidate the FEC approved for matching funds for the 2008 campaign.

Most of the stories regarding McCain's potential violation of FEC rules focus on a loan that the McCain campaign received and whether or not he used the matching funds coming from the government as collateral for that loan.

It's a twisted tale in itself and McCain now says that since he never directly accepted any federal funds, he is allowed to unilaterally withdraw from the program and raise and spend more private money than prescribed by the programs's spending cap.

Again in his reply to the McCain Campaign, David Mason, Chairman of the FEC, confirms that McCain can't just wave a magic wand and withdraw from the public financing system and his letter specifically references the loan and use of future Federal Matching Funds in part as collateral for that loan.

McCain, of course, insists that he did not.

One thing is clear, just as the law requires an affirmative vote of four members of the FEC to get in the program, it requires an affirmative vote of four members of the FEC to withdraw from the program.

However, the FEC is currently without a quorum to vote on the matter because of a fight between Senate Democrats (led by Obama and Sen. Feingold) and Republicans over President Bush's nomination of Hans von Spakovsky to the FEC. Von Spakovsky, was one of the administration's "voter fraud warriors" responsible for, among other things, approving Texas's controversial mid-decade redistricting and Georgia's photo identification law for voting. In retaliation for Obama and Feingold's hold on von Spakovsky's nomination, the Republican leadership put three other nominations on hold.

Therefore, the FEC does not have enough members to engage in certain actions, (such as granting McCain the right to withdraw from the campaign finance system).

John McCain refuses to publically acknowledge that the FEC has Not Approved his request to withdraw from the matching funds program.

The Ohio Connection:

Again former Chairman of the Federal Elections Commission, Bradley Smith provides the background.

Qualifying for the presidential primary ballot in Ohio is a complex process, requiring a candidate to gather over 100 signatures in each of the state’s 18 (Congressional) districts, using separate petitions for each county within the district, which must be filed with local election boards around the state.

Additionally, the candidate must gather still more signatures statewide, all under some very complicated rules and local interpretations. 

Fred Thompson, Mitt Romney, Rudy Giuliani, Barack Obama and Hillary Clinton went through this process, at considerable time and expense.  With a filing date of January 3, this was done by these campaigns at precisely the moment McCain was desperately borrowing to keep his campaign afloat, lacking the money and resources to organize and gather the signatures necessary to legally be placed on the Ohio ballot.

But Ohio has an alternative means of getting on the ballot – you can simply present your FEC matching funds authorization to the Secretary of State, and go straight to the ballot, without petitioning. 

And this is what Senator McCain did. 

According to the Politico, the McCain campaign, now contend[s] "that the Secretary of State  agreed to put him on the ballot simply on the basis of his "qualification" to participate in the public financing system." though he was informed by letter from the office of the Ohio Secretary of State that the Ohio statute (R.C.3513.121A) specifically refers to a candidate for the office of President who is "eligible to receive" Federal Matching Funds payments.

Senator Thompson, Mayor Giuliani, Governor Romney, Senator Clinton, Senator Obama, and several other candidates were all "qualified" for the funds, but because they never entered the program as McCain did, they had to spend time and money to petition to get on the ballot. 

The other candidates, who also "qualified" for the funds in terms of meeting the statutory requirements of eligibility, were not permitted direct access to the ballot. 

The Ohio Primary was held on March 4, yet it is McCain's postiion that he withdrew from the Matching Funds Program almost a month before that date on February 6.

It seems an either/or question with both results being bad for McCain.

Either McCain was in the matching funds program on March 4, 2008 and remains so to this day (as the FEC itself contends) and therefore is in violation of the spending limits imposed by the program and legally cannot spend another dime on his campaign until after the Republican convention in September or until the FEC votes to allow him to withdraw. . .

or as he contends he withdrew from the matching funds program on February 6 and thereby committed Election Fraud upon the State of Ohio by the using the direct ballot access to be on the ballot in Ohio's primary.

Can McCain legally be on the ballot in Ohio in the General Election in November if he fraudulently got on the ballot for Ohio's primary in March?

What is the legal impact after the primary election results are certified later this month?