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The Democratic Strategist

Political Strategy for a Permanent Democratic Majority

Ed Kilgore

McCain’s Hail Mary Options

It’s pretty clear that John McCain has a lot of strategic thinking to do. He’s won the GOP nomination, but not the trust of most “movement conservatives.” He’s doing well in most trial heats against Hillary Clinton and (less so) Barack Obama, but he’s fighting an underlying Democratic wave. He’s benefitting from the extended Democratic contest, but is in danger of becoming somewhat irrelevant, and also has serious financial issues. He enjoys a lot of positive media, but has nowhere to go but down in that dimension of presidential politics.
Naturally enough, there’s a whole cottage industry of speculation about what McCain might do with the largest symbolic token he can offer to his own party and to the electorate at large: his running-mate–an issue his age makes especially compelling.
We’ve reported here repeatedly on the standard-brand, white-bread conservative options McCain can consider. But there’s an enduring theory, as popular among fearful Democrats as among hopeful Republicans, that McCain will do something unpredictable, particularly if Barack Obama is the Democratic nominee. And this theory often centers on Condoleezza Rice.
The New Yorker‘s intrepid Hendrik Hertzberg offers the latest argument for a McCain-Condi ticket:

If McCain really wants to have it all—to refurbish his maverick image without having to flip-flop on the panderings that have tarnished it; to galvanize the attention of the press, the nation, and the world; to make a bold play for the center without seriously alienating “the base”—then he can avail himself of a highly interesting option: Condoleezza Rice.

Hertzberg makes some sense. But the case he makes applies a whole lot more to another Hail Mary possibility, Louisiana Governor Bobby Jindal. Like Condi, Bobby’s non-white and crazy smart. Like Condi, he represents a great American up-from-adversity story. But unlike Condi, Bobby Jindal is simon-pure on every imaginable conservative litmus test–particularly tests associated with the Christian Right–and has the blend of federal and state experience, along with youth, that a McCain ticket needs.
The only real arguments I’ve heard against Bobby as McCain’s running-mate are that he’s so young he’d show up his boss’s age, and that many Americans would think he’s a Muslim (he’s actually a Catholic convert from Hinduism) or would identify him with the smart kids from the Indian Subcontinent who are allegedly hoovering up so many U.S. service industry jobs.
Well, sure, if McCain is not inclined to take risks, Jindal won’t be considered for the ticket, but nor will Condi Rice. There are plenty of conventionally conservative white men available, and he’ll probably pick one.
But I’d be surprised if Bobby Jindal doesn’t make the ultimate short list, and might actually be considered if the GOP goes into the general election on a wing and a prayer.


Under the Bus

Presidential campaign staff and advisors have certainly been in the news in recent days. Barack Obama’s campaign has been afflicted for two weeks now by heavy media coverage of supposed gaffes by three top advisors: economist Austan Goolsbee and foreign policy wonks Samantha Power and Susan Rice. And reports of vicious infighting in Hillary Clinton’s campaign have long become a staple of political coverage, as illustrated by a front-page piece in today’s New York Times.
Invariably, these “gaffe” and “turmoil” stories, viewed as reflecting poor campaign management, lead to speculation about or even demands for (as in the case of Power) firings. Throwing an aide or advisor “under the bus” to resolve conflicts, control damage, or signal a change of direction, is an ancient ritual in electoral politics, particularly at the presidential level.
Sometimes staff firings or “shakeups” do indeed reflect major strategic considerations. Famous examples include Ronald Reagan’s dismissal of long-time chief strategist John Sears in 1980 after a potentially calamitous loss in the Iowa Caucuses; Al Gore’s “purge” of Mark Penn and other Clinton veterans during the 2000 primaries as a first step towards declaring Gore’s independence; John Kerry’s decision to side with Bob Shrum in a factional fight in 2003, which led to the resignation of Jim Jordan as campaign manager and a slow exodus of some anti-Shrum staffers; and most recently, the 2007 shakeup in John McCain’s campaign, wherein long-time strategist John Weaver hit the bricks.
“Gaffe”- or scandal-related firings haven’t been unusual, either. There was John Sasso’s departure as Michael Dukakis campaign manager in 1988, after Sasso was implicated in the leak of the Biden “plagiarism” story (Sasso returned to the campaign during the general election). And then you had Dick Morris leaving the Clinton re-election campaign in 1996 when the famous toe-sucking incident surfaced. There’s even a direct analog to the Goolsbee “NAFTA-Gate” saga: during the 1992 primaries, Clinton economic advisor Rob Shapiro was (temporarily) excluded from the campaign after Bob Kerrey attacked a New Republic article by Shapiro that in passing appeared to disrespect farm subsidies.
Finally, there’s another hoary convention wherein struggling presidential candidates bring in “senior advisors” to supply alleged adult supervision to faction-torn or disorganized campaign staffs. In a nice twist of fate, this role in John Kerry’s campaign was fulfilled by none other than John Sasso. And in the mini-shakeup that followed the departure of Patti Solis Doyle as campaign manager, HRC’s current campaign brought in Clinton White House political advisers Doug Sosnik and Steve Richitti.
So: there’s plenty of precedent for staff gaffes, turmoil, firings and shakeups, and plenty of evidence that they also mean a lot less than meets the eye. It’s human nature that political writers have a powerful attraction to this kind of story, with all its insider glamor. But it’s important not to confuse cause with effect, and staff or adviser shuffling with the fundamentals of any campaign. Sometimes they matter a lot, but not often.


Measuring the Will of the People

It’s not much of a secret that if Democratic primary and caucus participants don’t, as appears almost certain, give any candidate the delegates he or she needs to win the presidential nomination without superdelegates, there will be a big battle over the question of whether superdelegates should be truly free to express their preferences, or should defer to the “will of the people.”
While Hillary Clinton’s campaign has officially argued for the former, “free will” interpretation of the superdelegate role, it’s doubtful that position will be politically tenable if the “will of the people” clearly favors Barack Obama.
But ah, there’s the rub. How does one measure the “will of the people?” Pledged delegates? The popular vote by state? The popular vote by congressional district? Or the total national popular vote?
Over at DailyKos, Markos Moulitsas does a useful estimate of how superdelegates would, roughly, break if they vote according to the primary or caucus winner of the state to which they are assigned. Turns out they wouldn’t help HRC much if at all.
But is that the right measurement of the “popular will?” Who knows?
I agree with Markos that the only “popular will” measurement that HRC has a decent if uphill chance to win is the total popular vote. That measurement is complicated, not only because of the Michigan/Florida problem, but also because some caucus states (typically won by Obama) have not reported their actual raw vote.
But I don’t agree with him that the burden of proof for HRC is to establish that she’s the “people’s choice” that all superdelegates should be constrained to support. Her goal is to cast just enough doubt on the “popular will”–i.e., the results of the entire nominating process up until the convention–that superdelegates will feel morally and politically empowered to choose on different criteria, such as general election strength. It all the votes are perceived as adding up to a tie, then complicated schemes for “binding” superdelegates may amount to nothing, particularly since some of them (e.g., Virginia superdelegate Terry McAuliffe, whose district and state went for Obama) ain’t budging and there’s no mechanism for actually enforcing popular-will obeisance, even if advocates for that approach could agree on the right measurement. And for the same reasons, I wouldn’t expect the two campaigns to argue for any particular “binding” theory, which could produce perverse results if one candidate’s “supers” complied and the other one’s didn’t.
There’s an interesting discussion of this general issue up on the New Republic site between Jon Chait and Jon Cohn, but it’s more about the theory of superdelegate independence than the question of how to limit it.
Meanwhile, also at TNR, Michelle Cottle has a post about the awful but increasingly realistic specter of small groups of superdelegates peddling their votes for parochial interests.
None of this is going to be easy or clear, folks, unless one candidate or another gains massive momentum in the rest of the primaries and caucuses. Without question, Barack Obama still has the clear advantage, but it could get crazy down the stretch.


“Do-Over” Kabuki: Another View

My post yesterday suggested that a lot of the negative posturing over a “re-do” plan for Democratic delegate selection in Michigan and Florida was just Kabuki Theater formalism that hid a powerful momentum towards a compromise solution. But June Kronholz has a good article up for the Wall Street Journal today that explains why it may just not happen.
She reports that Michigan Democrats seem to be pulling back from a reported decision to go ahead with a “firehouse caucus,” mainly on cost grounds (though such caucuses are relatively inexpensive). And HRC’s campaign also appears to have gone back to its pre-March 4 “seat them all” position, after briefly hinting at support for a do-over.
Complicating the whole thing is the fact that many of the decision-makers on the ground in MI and FL are backing a candidate (typically HRC), and won’t make a move without the high sign from their champion. And then in FL, a genuine state primary “do-over” would require cooperation from Republican Gov. Charlie Crist and Republican legislative leaders, who are unlikely to go along with any plan that involves significant costs for the state itself.
Kronholz also alludes to another solution: doing what the Republicans did with Florida, and letting the results stand but reducing the number of delegates. That would avoid the “do-over,” but it doesn’t deal with the unique MI problem, where Obama wasn’t on the ballot and would get skunked in pledged delegates. So maybe one possibility is a firehouse caucus do-over in MI, and then a reduced delegate seating in FL. This might be tempting to HRC, since it would leave in place her large popular vote margin in FL. If by the end of the nominating process she’s passed Obama in the total popular vote, that would give her an argument that Obama’s almost certain lead in pledged delegates should be disregarded by superdelegates. But any solution that’s tempting to HRC might well be rejected by Obama on mirror-image grounds.
Aside from Howard Dean’s deal-making and arm-twisting ability, the real issue may be if the two campaigns are willing to live with the default “solution:”

If neither state comes up with a new delegate-selection plan by mid-June, the issue will be tossed to the party’s credentials committee. But a resolution there seems likely to continue the stalemate: The committee will have about the same proportion of Obama and Clinton supporters as the convention does.
In any event, credentials-committee decisions must be ratified by the entire convention, which could result in a televised floor fight and a public-relations nightmare for the party.

Moreover, not to be a broken record about this, but leaving FL and MI to be resolved at the convention itself also means that no candidate will be in charge of convention planning. And that’s a recipe for some real excitement, to be sure, but also chaos.


“Do-Over” Kabuki

Yesterday I suggested that there was growing and probably irresistable momentum towards a “do-over” of the Michigan and Florida Democratic presidential primaries whose results are not, under present rules, being rewarded with actual pledged delegates (MI and FL’s superdelegates, BTW, aren’t being offered seats, or even hotel rooms, at the Convention either).
That’s still true, but the events of the last 24 hours have shown that arranging a “do-over” is pretty complicated. Yesterday MI and FL Democratic leaders issued a manifesto demanding that their delegates be seated. DNC Chairman Howard Dean quickly responded that it ain’t happening, and that Democrats in the two states needed to come up with a “do-over” plan to pick recognizable delegates. Sen. Bill Nelson (D-Fl) fired off an open letter to Dean saying that the national party needed to pay the substantial (as much as $20 million in FL alone) costs of any “do-over” primary. Dean responded that it wasn’t his problem. And today, reports emerged that MI Democrats are considering a caucus to elect delegates.
A lot of this is pure Kabuki Theater designed to establish the high moral ground on this controversy. MI and FL Democrats want the national party to acknowledge their primaries were legitimate expressions of popular opinion. The DNC wants MI and FL to acknowledge they broke the rules, and agree to a do-over of their own initiative, without massive DNC subsidies. And the Clinton and Obama campaigns obviously have a big stake in the outcome, and will probably have to agree to any proposed resolution.
A caucus in MI makes a lot of sense; the party’s done them before, and would probably hold so-called “firehouse caucuses ” that are basically closed primaries with very limited numbers of polling places. Florida’s a tougher place to hold caucuses, since they don’t have any experience with them, and participation might be down sharply from the earlier primary.
More importantly, the candidates have variable interests in the structure of any do-overs. Obama has done famously well in caucuses. And aside from the impact of caucus do-overs on the delegate count, lower participation would almost certainly reduce the impact of both states on the total popular vote for the overall nominating process, in which HRC is, by some assessments, getting close if the FL results are included, and could actually be ahead if the more tainted (because Obama was not on the ballot) MI results are included.
The most likely compromise would be for MI to hold caucuses, and FL a primary, with some but not total DNC and/or candidate subsidies. Aside from the equitable argument that the two states should pay some price for their scofflaw behavior, the reality is that both would benefit from massive candidate spending, and would, assuming their contests are scheduled for May or even June, play the kind of crucial role in determining the nomination that far exceeds what they hoped to accomplish by breaking the rules in the first place.
But that’s all easier said than done, and given the complex number of players in this decision, and their Kabuki Theater positions, this will ultimately be a big test of Howard Dean’s leadership abilities.


Insider Intrigue

If you like political “insider” stories, there are two of them creating a big buzz in Washington this morning that touch on the Democratic presidential contest.
First up is a big Washington Post front-pager by Peter Baker and Anne Kornblut that details the much-rumored infighting within Hillary Clinton’s campaign. The lede pretty much summarizes the whole piece:

For the bruised and bitter staff around Sen. Hillary Rodham Clinton, Tuesday’s death-defying victories in the Democratic presidential primaries in Ohio and Texas proved sweet indeed. They savored their wins yesterday, plotted their next steps and indulged in a moment of optimism. “She won’t be stopped,” one aide crowed.
And then Clinton’s advisers turned to their other goal: denying Mark Penn credit.

Much of the story is about Penn, HRC’s pollster and sometimes “chief strategist,” who vocally and successfully urged the candidate to go after Barack Obama’s credibility as a potential commander-in-chief, encapsulated in the now-famous “3 a.m. ad.” Penn has some personal issues with other HRC staffers that go back to his days advising Bill Clinton. And according to the story, he’s come within inches of getting fired on a couple of occasions during this campaign.
The most interesting revelation in the article may have been this tidbit about HRC:

One of Clinton’s favorite books is “Team of Rivals,” Doris Kearns Goodwin’s account of Abraham Lincoln’s Cabinet, and she assembled her own team of advisers knowing their mutual enmity in the belief that good ideas come from vigorous discussion

An example of this “vigorous discussion” is a pithy exchange between Penn and long-time “rival” Harold Ickes during a campaign conference call:

“[Expletive] you!” Ickes shouted.
“[Expletive] you!” Penn replied.
“[Expletive] you!” Ickes shouted again.

Nice.
Meanwhile, in other obscure but politically significant news, there’s been a strange new twist in the so-called “NAFTA-Gate” saga.
Ian Brodie, chief of staff to conservative Canadian Prime Minister Stephen Harper, has been a prime suspect in the leaking of a memo by Canadian conciliar officials discussing a meeting with Obama economic advisor Austan Goolsbee in which the Canadians were allegedly reassured that Obama’s candidate’s attacks on NAFTA were “political positioning,” not an indication of future policy.
Nobody’s yet documented this claim about Brodie, but now it transpires that he told a group of reporters back on February 26 that the Canadian diplomats had been approached by someone from Hillary Clinton’s campaign with reassurances similar to those Goolsbee’s accused of offering. Meanwhile, Brodie has ordered an investigation of the leaks of the memo about the Goolsbee meeting. Lord only knows where this story’s going next.


More March 4 Post-Mortems

Jay Cost at RealClearPolitics has a typically lucid analysis of how HRC won Ohio and Texas, and how the results compared with previous primaries. His bottom line is that Obama was showing some momentum in Wisconsin, but it’s now gone for the moment.

It should be clear that Texas and Ohio performed in a manner roughly consistent with the states prior to Wisconsin. From this, we might infer that any momentum that Obama developed after the Potomac Primary was not carried through yesterday. Wisconsin did not help him in Texas and Ohio – as Virginia, Maryland, and DC seemed to help him in Wisconsin. The states voting yesterday seemed to vote “normally.”

In other words, the Democratic contest is still dominated by demographics, though as Cost notes, HRC is currently making a few gains in “Obama categories” of the electorate, partially reversing the gains Obama made in the “Clinton categories” in the Potomac Primary and more clearly in Wisconsin.
On another front, there’s growing speculation that the contest at present creates a lot of momentum for the idea of a “do-over” of Michigan and/or Florida. As J.P. Green suggested earlier on this site, this may be the only way to resolve the “people’s choice” argument. HRC supporters Ted Strickland and Terry McAuliffe seemed to be hinting at that last night, and Obama’s already on record supporting a “do-over” if it’s done right. It may be the only way for HRC to get close to Obama’s totals in pledged delegates, and to get close or take the lead in the total popular vote–a big deal in terms of the moral and psychological case for letting superdelegates decide the whole contest.


Clinton Wins Big, Wins Little, But In Any Event Wins

Hillary Clinton accomplished exactly what she needed to accomplish yesterday, winning the popular primary vote in Ohio and Texas (plus Rhode Island), breaking Barack Obama’s winning streak, beating the expectations as of about a week ago, and re-exposing the weaknesses in Obama’s voter appeal that the post-Super Tuesday contests seemed to have repaired.
But in the ultimate measurement, pledged delegates, HRC will probably wind up with a pretty small net haul of around 15. In part that’s because Obama seems to be narrowly winning the strange Texas Caucuses that convened after the polls closed last night (the results will take a couple of days to finish trickling in), which will determine one-third of the state’s pledged delegate total. It should be noted, however, that she did make some progress in reducing Obama’s overall popular vote lead for the entire nominating process,which could become an important psychological factor in determining superdelegate support. And the TX and OH wins might well slow or stop the drift of superdelegate support towards Obama that’s been evident in the last few weeks.
Finallly, March 4 showed she could beat Obama in large, expensive primary states where he’s outspending her heavily.
The exit polls for OH and TX showed HRC posting her usual big wins among white women, self-identified Democrats, and less-educated and lower-income voters. But she made improvements elsewhere, especially in Ohio, where she won white men by 19 points, and ran even with Obama among voters with some college education, and those earning over $100,000. In both the big states, she reduced Obama’s lead among independents to single digits. And in TX, she got the two-to-one win among Latinos she needed, along with a big turnout.
Age continued to be the sharpest differentiator of candidate support; in OH, Obama won 70% of the youngest cohort, those under 25, while Clinton won 72% of those over 65.
Flipping all this around, Obama’s clearly got some problems with white working-class voters that lose him primaries in states where his margins among younger and highly-educated voters, including independents, aren’t overwhelming and African-American voters make up less than 20% of the Democratic electorate. If PA shows the same patterns next month, there will be some seriously worried talk among Democrats about his ability to win midwestern industrial states in November.
The other source of concern for the Obama campaign is the already-heavy media belief that he “can’t take a punch”–that negative campaining gave HRC the boost she obviously got from late-deciding voters.
We’ll see what happens next, but it’s certainly beginning to look like the contest will go past the primaries and caucuses and be determined by such factors as the Florida/Michigan issue and superdelegates.
In the meantime, I recommend Chris Bowers’ take on the delegate situation after yesterday, and John Judis’ analysis of the March 4 exit polls.


Concerning “NAFTA-Gate”

If Hillary Clinton wins big in Ohio today–where Barack Obama seemed to be headed towards an upset win just a week ago–you can bet the punditocracy will attribute the turnaround to “NAFTA-Gate” (yes, friends, a full generation after the Watergate break-in, American political reporters still attach the suffix “gate” to every imaginable political controversy, big or little).
In case you somehow missed the saga (hard to imagine, since it’s received saturation treatment from the MSM over the last few days), “NAFTA-Gate” refers to an incident wherein Obama economic advisor Austan Goolsbee (by all accounts a brilliant and non-Machiavellian gent) attended a private meeting with lower-level Canadian conciliar staff in Chicago, after which said staff prepared a memo suggesting that Goolsbee told them that Obama’s sharp rhetoric about NAFTA was merely “political positioning.” The memo was subsequently leaked to the Associated Press under suspicious circumstances, possibly by the office of conservative Canadian Prime Minister Stephen Harper.
There are a lot of reasons this incident, which might have been considered a nothing-burger at a different time and place, drew so much attention, beyond the efforts of the Clinton campaign. Most obviously, it occurred on the eve of a crucial primary in Ohio, which is arguably ground zero for the anti-free-trade sentiment that has gradually become dominant in the Democratic Party over the last decade. Being considered soft on NAFTA in Ohio is a bit like being perceived as hostile to ethanol or caucuses in Iowa.
Moreover, “NAFTA-Gate” was immediately inflated by something of a perfect storm of highly divergent media interests: political beat reporters eager to rebut allegations that they had given Obama a free ride; centrist editorial writers alarmed by both candidates’ anti-NAFTA rhetoric; Republican operatives and conservative noise machinists happy for the chance to take Obama down a notch; and then the Lou Dobbs types always ready to pounce upon “evidence” that politicians say one thing about trade to the folks and then sell them down the river behind close doors, on the advice of people like Austan Goolsbee.
It’s richly ironic that the politician benefitting from “NAFTA-gate” is the wife of the man most often accused by his Democratic critics of feeling the pain of trade-affected workers while promoting contrary policies, Bill Clinton, who signed NAFTA and then pushed it through a closely divided Congress.
But still, the Obama campaign undoubtedly set itself up for this bad press by going after HRC on NAFTA. And it gave the story a long shelf-life by initally denying any back-channel Obama-Canada discussions, and then, once Goolsbee’s name surfaced, trying to claim he was just some academic economist speaking for himself.
Largely lost in the controversy is what Goolsbee actually said to the Canadians. The undisputed part of the story is that he encouraged Canadians to understand Obama’s remarks on NAFTA within the broader context of his overall views on trade and globalization, which have been consistently positive. And if you are looking for any deep meaning in the whole kerfuffle, it’s that Barack Obama is himself a symbol of globalization. It’s no accident that so much of the world has become fascinated with his candidacy and what it might mean for an America often viewed as simultaneously isolationist and militarist.
Beyond its affect on Ohio and the presidential nominating contest, the ultimate effect of “NAFTA-gate” will probably be minor. One friend of mine quipped today that most Americans might learn for the first time that Canada is a signatory to NAFTA. Daniel Drezner has suggested that the Canadians have finally found a way–albeit the worst way–to become relevant to an American presidential campaign.
Best I can tell, both Barack Obama and Hillary Clinton, much like Democrats generally, think and live in that shadowy borderland that divides “yes, but” and “no, but” attitudes towards trade agreements with other countries. You don’t have to consider them hypocrites or scoundrels for leaning towards “no, but” arguments while campaigning in Ohio, and then leaning towards “yes, but” positions if actually elected president and put in charge of this country’s international economic policies. You can’t take the politics out of politics, and in terms of everyone’s reaction to this strangely overwrought incident, that may be the residual lesson of “NAFTA-Gate.”
UPCATEGORY: Democratic Strategist
I would add to Matt’s analysis, however, one proviso: Kerry, who had one of the most consistent pro-trade voting records of any Senator from either party, never promised to renegotiate past or suspend future trade agreements. His big concession to anti-NAFTA Democrats was to promise a comprehensive review of all existing trade agreements to see if they were serving their original purpose. Much of his rhetoric about “Benedict Arnold CEO’s” had to do with tax subsidies for offshoring rather than trade policy.
But I agree with Matt’s basic point that the tension between Democratic rhetoric and Democratic policy on trade didn’t start with Barack Obama or Hillary Clinton. Indeed, lest we forget, Al Gore was the man who vanquished Ross Perot in the famous debate over NAFTA in 1993. By 2000, his campaign had adopted the official position of the NAFTA-hating AFL-CIO, that labor and environmental standards had to be included in the “core” of any bilateral or regional trade agreement, a condition squarely violated by NAFTA, and contrary to the trade policies of a Clinton administration in which Gore had been a major figure.


McCain Versus Campaign Finance Reform

NOTE: This item, by Matt Compton, was originally posted at The Daily Strategist on February 28, 2008.
Before he won the New Hampshire Primary, the political future of John McCain was in serious doubt.
In October, his campaign for president had just $3.4 million cash on hand (with much that money reserved for the general election) and a debt of $1.7 million from overdue credit card payments and unpaid bills.
By November, McCain’s financial worries were so serious that he negotiated a $3 million loan to keep his campaign afloat.
By December, he was broke again, and McCain went back to the banks, asking for another $1 million to keep campaigning. And this time, the lenders told him they needed some collateral.
Knowing that cash would be a problem for the nomination contest, McCain had earlier opted into the national public financing system, and the Federal Election Commission had already certified that he was owed $5.8 million in public matching funds. He also used the FEC certification to get on the ballot in several late-primary states, including Ohio, instead of paying canvassers to collect signatures.
But in the primary process, public financing is a loser’s bargain. If he ultimately chose to accept the federal money, McCain wouldn’t receive any of those funds until March, and even more seriously, he would be limited to a total spending cap of $54 million until he became his party’s nominee at the Republican National Convention in September. Accepting the funds would put him at a major strategic disadvantage in the general election.
Those facts left McCain with a decision to make. Even agreeing to put up the matching funds as collateral for a loan would have forced the campaign to adhere to the spending limits. So, once he started winning primaries, he planned to opt back out of the system and raise private money until he was the Republican nominee. There was a precedent for that — Richard Gephardt had been allowed to do the same thing four years ago.
But to get the new $1 million loan immediately, he and his lawyers tried something clever — they told the bank that if money again became a problem, they would opt back into the public financing system, accept the public funds from the FEC in March, and use that cash to pay back his loans — even if he had suspended his campaign for president.
And there is no precedent for that particular opt-in, opt-out, then maybe opt back in–legal maneuver.
On February 6, with the GOP nomination all but locked up and the money again flowing, McCain formally notified the FEC of his plans to withdraw from the presidential public financing system.
On Thursday, FEC Chairman David M. Mason, a Republican, issued the commission’s response. The letter is available here.
He told the campaign that McCain can’t withdraw from the public financing system for the primaries until the FEC gives him permission to do so. It cannot do that until it has enough members to maintain a quorum.
Right now, there are only two appointees serving on the commission, and the Senate and President Bush continue fight over the nominees. With four vacancies, the FEC isn’t in a place to make any decisions of any kind. It doesn’t have enough members to make any sort of binding decision or impose fines on anyone. The way things stand now, that leaves a lot of grey in the world of campaign finance.
But even with only two active members, the FEC asked McCain to explain his rationale for why using the promise of public funds to secure his loan did not actually commit him to using those funds. If the commission could issue a decision on McCain’s situation tomorrow, there is no guarantee that they would choose to release him from his commitment to public financing.
On Monday, the Democratic National Committee got into the act. Chairman Howard Dean announced that he would be filing a formal complaint with the FEC to demand that John McCain remain committed to the campaign finance rules.
That same day, McCain’s lawyers told the FEC that he did not need their approval to withdraw from the public finance system. Lawyers for his bank reinforced his claim that he never technically promised public money as collateral.
Now we’re at an impasse, again, and one where there is no clear precedent.
McCain has already spent $49 million in the primary, meaning that if he is forced to adhere to the spending limits, his campaign must essentially cease all activity until he becomes the nominee 6 months from now. If he were to continue to operate in clear violation of the spending limit, McCain could be in legal jeopardy — potentially subject to fines and up to five years of jail time.
His lawyers have the option of taking the FEC to court, but as Rick Hasen has pointed out, there’s no way of knowing what authority the judicial system has over an FEC without quorum. We simply don’t know if the courts have the power to order the commission to make a decision as it is currently composed or to somehow make its own decision from the bench.
But this much is clear: If there exists even a hint of a possibility that John McCain might be willfully violating election laws, he has a real image problem. His name is synonymous with the cause of campaign finance reform, and he owes his good press clips to a reputation as a “straight talker.” Deceptive manipulation of the campaign finance system would not go over well. Moreover, the controversy undercuts his frequent attacks on Barack Obama for equivocating on earlier statements that he would accept public financing for the general election. That’s why Howard Dean is working to exploit the issue and make voters aware of it. If this legal process drags on, it has the potential to make him both a hypocrite and, ultimately, a loser.