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Ah, Reform

27 Feb 2008 08:55 pm

I have to say, I think it's pretty pathetic for Fred Wertheimer, erstwhile campaign finance reform advocate, to be punting like this on the issue of John McCain's public financing shenanigans. Pleading lack of legal expertise in this front would make sense if we'd taken the issue to a lawyer who was begging off and saying it's outside his area of competence. But Wertheimer is a reform advocate. Surely he ought to come up with an opinion as to whether or not the precedent McCain is trying to set is one we should welcome or one we should regret.

As a refresher, here's what McCain thinks should be allowable. Candidate enters the race. Candidate experiences fundraising difficulties. Candidate signs up to receive primary campaign public funds, knowing full well that this will commit him to abide by spending limits during the pre-convention period. Candidate uses promise of public funding to help secure a loan for his campaign. Candidate uses loaned funds to help wrap up the nomination well before the convention. Having become his party's nominee, the candidate's fundraising woes are gone. Candidate notes that he hasn't yet spent any public funds (merely used the promise that they would be forthcoming to secure a loan and spent the loaned funds) so asserts that he can decline to accept them, decline to abide by spending limits, and repay the loan and finance the rest of the campaign with the now-forthcoming special interest cash.

Now whether or not that procedure conforms to the law as written is clearly an issue for legal experts. But whether or not, as a policy matter, the reform community favors the creation of the kind of loophole McCain wants to create is not. I have a hard time imagining how any reform advocate could favor the McCain loophole. But maybe some reformers do favor it. If so, they should say so and give their reasons. If not, they should say so and give their reasons. But this mum's the word game, this effort to cover McCain's ass while keeping their own asses covered, is just pathetic. What do they think, that if they carry McCain's water for him and prove to all the world that he can thumb his nose at them and pay no price for it, and then McCain becomes president, then they're going to have the leverage and access they want? That's preposterous.

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Comments (67)

You might also want to note that he used the certification for matching funds to get on the primary ballot in several states, thus saving him 6 or 7 figures of organizing costs.

The other issue, which hasn't really gotten a lot of play, is the bad optics of just how venal his stunt was.

McCain's shenanigans meant that he would never bind himself to public financing and their accompanying spending limits. If his campaign tanked, spending limits became irrelevant, but more importantly, the public till would bail him out.

In short, McCain was taking out a loan knowing that *he* was never going to be responsible for paying it back: either his future donors would be (in the case of political success) or the taxpayers would be - in the event of political failure. McCain was rolling the dice on the public dime.

The Straight Talk express also used his email list as loan collateral when they were in dire straits, after promising not to sell his subscribers' info.

Yep, we won't sell your info, but we'll borrow against it, and you better hope we don't default. Can't get any straighter than that!

Is there any way to distill the story down into one or two sentences?

But Obama's an Islamofascist sleeper agent!

But Obama's an Islamofascist sleeper agent!

This faux Rovism just has to stop.

Listen, if you want to attack the hypocrite on campaign finance, it's your guy, Obama. He's the one who broke his solemn promise to abide the spending limits in the general election. Attacking the guy with better lawyers seems a little off target.

We all know that the big liberal bloggers are coordinating their outrage to give Obama cover to break his promise. It's entirely transparent. And dishonest. And it's not even clever.

Is there any way to distill the story down into one or two sentences?

Yes. John McCain is breaking the campaign finance law he wrote.

Is there any way to distill the story down into one or two sentences?

I can do it in seven letters: IOKIYAR

1) Ah well, this may all be irrelevant anyway.

The NY Times notes that there some legal question of whether McCain is a "natural born American" -- i.e, whether McCain's birth in Panama makes him ineligible to run for President.

See http://www.nytimes.com/2008/02/28/us/politics/28mccain.html?_r=1&oref=slogin

2) Which new article no doubt makes that vein on McCain's 72 year old forehead pulsate.

Especially when he looks over and sees that angelic look on Huckabees face.

Obama promised to negotiate with McCain to preserve the public financing system if he became the nominee. I fully expect that when Obama becomes the nominee he will negotiate.

I would not hold my breath on the success of those negotiations, however. As a practical matter how can the public financing system be preserved now that the McCain loophole exists?

It is clear that McCain will never agree to anything which impede his ability to do whatever the hell he wants.

*That's* why Obama justifiably gets to avoid the public financing system. Because McCain has already broken it.

1 out of every 300 Americans has already given Obama money. By November that figure could easily be one out of every 100.

Sounds like public financing to me....

this is EXCELLENT NEWS!! for McCAIN!!

McCain may have screwed himself in more ways than one with his shifty manuevering. He may indeed have boxed himself into spending limits. Worse, he may have provided Obama with the rationale to forego his own supposed pledge to accept public funding. It would be mighty easy for Obama to look at McCain's sleight of hand and simply declare that, "If McCain isn't going to play it straight, than I'm under no obligation to do the same." And then Obama proceeds to bury McCain with an awesome online fundraising operation.

Thomas, better trolling please

McCain: breaking a law that he frikkin wrote

Obama: being a little coy and clever with words giving himself a way out of public financing

I guess in wing nut land the 2nd is the greater offense.

Eric, breaking the law? That's not Matt's conclusion.

The offense is Matt's, btw. Obama is a liar, but he's a politician, so who can be offended.

But Matt isn't a politician. He is however acting in a coordinated effort on behalf of a political campaign, without revealing that to his readers. That I do find offensive.

Candidate uses promise of public funding to help secure a loan for his campaign.

This is a lie.

I'm not sure any reform advocate would favor an outcome by which one candidate has to go dark until the convention while the other spends $50-$100 million on advertising.

I can see why DEMOCRATS in THIS cycle would want to see this, but I can't see many reform advocates supporting it.

Al, it isn't a lie. It's just a mistake in transcription. None of this originates with Matt. It's from the damn email group. And unfortunately they don't have anyone in the group who can read loan agreements.

Obama promised to negotiate with McCain to preserve the public financing system if he became the nominee. I fully expect that when Obama becomes the nominee he will negotiate.

I would not hold my breath on the success of those negotiations, however. As a practical matter how can the public financing system be preserved now that the McCain loophole exists?

It is clear that McCain will never agree to anything which impede his ability to do whatever the hell he wants.

*That's* why Obama justifiably gets to avoid the public financing system. Because McCain has already broken it.

"Democracy 21 does not have the answers to the legal questions that have been raised"

That is why, Democracy 21, and Common Cause, and other such groups, are useless, and counter-productive to any sort of liberal/progressive movement.

If, um, "Democracy 21" doesn't have answers....where is all your money going?

Guess: Lotta lunches for Fred.

Thomas or Al,

Here is a link to the loan agreement (http://images.nictusa.com/cgi-bin/fecimg/). Go to the bottom of the 3rd page (page 2 of the actual agreement) or the middle of the 22nd page (page 2 of the amendment to the loan agreement) and read.

The language requires that if McCain withdraws from the public matching fund program, but then does not win the next primary or caucus in which he is active (or New Hampshire, in the original agreement) or place within 10 points of the winner of such primary or caucus, then the Borrower (i.e., McCain's campaign organization) will cause McCain to stay in the race, reapply for the federal matching funds and grant a first-priority interest in the matching funds to the bank as additional collateral for the loan.

Matt may not be a lawyer or know how to read a loan agreement (though he hasn't yet shown me that he doesn't), but I am a lawyer and have drafted and reviewed loan agreements professionally. What the language I paraphrased means is that the bank was not comfortable that the stated collateral would be enough to cover the loan, unless McCain did well in the primaries. Consequently, McCain's campaign committee agreed that if McCain was doing poorly in the primaries, he would stay in the race and reapply for matching funds to ensure that the loan would get repaid.

Now while the matching funds were not attached as actual collateral, the campaign committee's obligation to attach them as additional collateral was used as to ensure (unless the bank would be unable to enforce this additional provision, which would have been possible) that McCain would be able to pay back the loan. In other words the federal matching funds functionally acted as collateral.

I didn't read a group email, and have no idea what you are talking about in that regard, but I've given you a link to the agreement on the FEC site (which I don't think was doctored by the grand email-exchanging liberal conspiracy against the great and sainted John McCain) and paraphrased the language. Now give me some plausible reading of the agreement that shows me to be incorrect.

Thank you.

Best regards,

Joe

Joe, if a client-bank asked you to describe the collateral, what would you tell them? Would the description include matching funds, or not?

If the collateral doesn't include matching funds, then public funds aren't "securing" the loan.

Thomas,

If my client was the bank, I would tell them that while the initial collateral may not cover the loan if the candidacy failed, their loan would be covered by the campaign committee's obligation to apply for and pledge the matching funds as additional collateral. If my candidate was the campaign committee, I would tell them that there was a substantial risk (though no guarantee) that the FEC would smack them on this if they actually had enough members to do so.

I am not at all an expert on campaign finance law, and so have no idea whether the creative drafting actually jumps through a loophole in the regulations, but if this does not violate any of the regulations then it does seem to violate the intent of the regulations. Think of it this way: if McCain's loophole works, then no candidate would ever need to pledge the public funds as initial collateral in order to obtain a loan and the FEC's ruling on using public funds as collateral has zero practical purpose. Regulators don't generally interpret their regulations as having no meaning.

If we assume that the FEC intended their ruling on use of public funds of collateral to have meaning, the better way to frame the question is: would the bank have made the loan without the matching fund language. Though I have no idea what the bank's internal credit analysis looked like, I am nearly certain that there is no way that McCain's campaign committee would have agreed to include this language unless the bank pushed very hard for it (or otherwise the committee's lawyers have done their job very poorly). As I assume the competence of McCain's lawyers, the only way that McCain was able to secure the loan was by pledging the public funds in this manner.


Joe, I too am a lawyer and, among other things, counsel lenders and borrowers with respect to loans.

While the link you provided doesn't work for me, I was able to find a link to the Loan Modification Agreement. The provision you describe is a covenant, not collateral. You will notice that Section 4(a) of the modification agreement restates a paragraph in the Affirmative Covenants section of the loan agreement. It does not modify the definition of Collateral. Indeed, Section 4(d) of the modification agreement restates the definition of Collateral, and the restated definition excludes the matching funds.

If you are a lawyer that practices lending, you should know the difference between a covenant and collateral. Unlike collateral, a covenant cannot be foreclosed on. In the event the covenant were breached, the most the bank could have done would be to sue for damages.

Al, I need some help from your lawyering skillz: what exactly was the effective collateral for the multi-million dollar loan, then? Surely the bank doesn't hand out millions of dollars willy-nilly to any mortal comer. Do only saints qualify?

Eric, breaking the law? That's not Matt's conclusion.


The offense is Matt's, btw. Obama is a liar, but he's a politician, so who can be offended.


No controlling legal authority has ruled that McCain did anything wrong. And at least the Senator isn't dressing up like a Somali warlord as some kind of cheap fundraising stunt.

Obama would sell the country out to the Chinese the same way he's sold his campaign out to high-rolling donors.

You can take that to the bank.

DougJ, too late. The U.S. has already been sold to the Chinese. We had to finance the useless Iraq war and tax cuts for the rich somehow.

I wanted to leave a comment correcting the post on the point of whether McCain's present participation in the public funds program, as opposed to his future participation, was used to secure the loan, but then Thomas decided to start flagrantly lying* and I got distracted.

*"He's the one who broke his solemn promise to abide the spending limits in the general election." Obama never made such a promise, and there is no way Thomas believes he did.

Al,

I don't think anything that you wrote contradicts anything that I wrote (for example, I never wrote that the matching funds were "collateral" on the face of the agreement). Of course it's true that if the covenant to attach the matching funds as additional collateral was breached, the bank's recourse would be suing the campaign committee for damages rather than foreclosing on the funds.

However, as I mentioned in my prior post, the key question in my mind is whether McCain violated the intent (or spirit) of the regulations if he did not violate the regulations themselves (which I think is still an open question given the FEC's recent letter to McCain). I assume that Senator McCain did not have his campaign committee enter into the loan agreement with the bad faith intent to breach the covenant if the relevant circumstances occurred. Consequently, his intent must have been to attach the public matching funds as additional collateral to repay the loan if his candidacy began to fail. Furthermore, McCain, as a public figure and repeat player in the business of acquiring loans for campaigns, would be very unlikely to breach this covenant and force the bank to sue him for damages.

Consequently, it seems to me that McCain was gaming the public financing system in a way that is inconsistent with both his very public stance as a paragon of ethics in the campaign finance system and his very public, very self-righteous stance on Obama's pledge.

Now is the time for Democrats to unite in support of the Feingold Campaign Finance Reform Law. That other cosponsor wants nothing to do with it.

I too found that this story was so obtuse, but I have been paying attention for the last week or so since this story broke. The WaPo has a story in today's paper. "Loans Could Paint McCain Into Corner" - by Matthew Mosk


Because this story is so confusing, I wrote this fairy tale about it on the WaPo and will share it with you (with some edits for this site).

Episode I

Once upon a time, a Senator was losing an election and was out of money. His name was John McCain. But John is a confident fellow and he really believes he could win if only he could get more money. So John decides to go to the bank and ask for a loan.

The bankers said "Sure, Senator, but what can you give us as collateral?" John says, "How about a list of my rich friends?" The banker thought...he wants a lot of money, and the board will have to agree... So the banker asks John, "What else have you got?"

John thinks to himself, 'I really think I can win this, but what can I do? I know! I'll go talk to my friend Potter.' And John calls his friend.


John's friend suggests that he use matching funds from the Feds as additional collateral. If John succeeds, he says, John can tap his rich friends and pay back the bank. If he fails, then the Fed matching fund pays back the bank. It's cool, its perfect. John goes back to the bank. John gets the loan.

The Primary season goes on. John starts to win. It takes awhile to win certain primaries, but John doesn't worry. He knows he doesn't have to collect signatures or pay to get on the ballot in primary states because the fees are waived because of the matching funds. This saves him thousands of dollars. ('I only hope the Dems don't get wind of this', he thinks)

John's faith in himself is realized. The money comes poring in. He's all set for a terrific general election campaign and, what's more, his potential democratic rival had promised.last year, to work with him should they both win their party's nomination.

John is riding high. He challenges his rival, the 'Kid', to 'Keep your pledge!' heh, heh. His rival hasn't won his party's nomination yet so the 'Kid' tells John, "Wait until (or if) I win the nomination, then we'll talk" "Hypocrite", John crows to the press.

But the Senator bides his time. He meets with his big donors and plans his general election campaign. They have a big laugh together about his potential rival. They chuckle about the coming contest. John thinks his rival is inexperienced even if the guy can raise a fortune. 'That guy is way too green and he cares about his reputation. He is no match for me', he laughs.

One day, his finance chair asks to see him. "John we have a problem. Reporters have a copy of the loan agreement and that means that the DNC will have it too. John, we have reached the limit for spending in the primaries. We can't spend or raise any more until the fall" "Crap", says McCain, "Get Potter on the phone. We'll have to withdraw from matching funds."

"That won't do, Senator," says the finance chair, "The FEC can't rule because the Dems won't confirm that idiot the President sent up to the Senate" '#%&^,' says the Senator, 'George Bush is screwing me again!' .....

Next week our story continues...stay tuned for more exciting episodes.

Episode II: Howard Dean sends a letter.

Episode III: The 'Kid' raises $60M a month from 1 million grass-roots donors.

Episode IV: The 'Kid' wins his party's nomination but wonders if his rival can be trusted and/or if he will play fair if an agreement is reached.

Episode V: The grass-root donors beg the 'Kid' to forego matching funds for the general.

Episode VI: The 'Kid' decides. He tells the Senator to go f**k himself.

The End.

The legal wrangling doesn't mean jack, as far as I'm concerned.

McCain borrowed funds against the prospect of his being able to receive public financing. If he had had no prospect of receiving public funding, he wouldn't have been able to borrow the money.

Legally, it's distinct from using public financing as collateral. But it's certainly in the same spirit.

And if Brave Sir Robin Wertheimer can't offer an opinion on whether such a loophole is or isn't a Good Thing, then it means he's been bullshitting us for the past 30 years.

Eric, breaking the law? That's not Matt's conclusion.

It is the conclusion of the Republican chair of the FEC that McCain would be breaking the law by withdrawing from the public financing system without FEC approval. Also that McCain has some explaining to do about the loan agreement:

Citing the loan agreement, Mason wrote: "We note that in your letter, you state that neither you nor your (presidential campaign) committee has pledged the certification of matching payment funds as security for private financing. In preparation for commission consideration of your request upon establishment of a quorum, we invite you to expand on the rationale for that conclusion."

That would seem to be an expert opinion. Of course, McCain can say that the full FEC can't make a decision, because Senate Republicans blocked confirmation of the nominees. (I can't tell how McCain himself voted on this issue.) But that's pretty thin gruel.

Hey, I'm for Obama and certainly won't be voting for McCain, but I just don't see the problem with what he's doing in this specific instance. He declared he was going to accept public funding and then changed his mind. Criticize him for flip-flopping, OK, fair. Criticize him for being holier than thou about campaign contributions and then changing his mind when his self-interest dictated, OK, fair. However, in terms of compliance with the law, I don't see the problem. Even if he had already received from public money I could see a case for allowing him to back out as long as he paid the public money back. As far as the loan is concerned, that's an issue between McCain and the lender. Sure, he listed public funds as collateral, but if he can now substitute other collateral, which he now certainly can, I don't see why the lender wouldn't agree to alter the terms of the loan.

McCain's a liar, big time. Mr. Straight Talk promised the bank he'd continue to campaign if he lost, so he could pay off his debt.

Let's be clear--he promised to run a FAKE campaign whose only purpose was to get campaign finance money from the American people to pay off the bank.

I think this is worse than the McCain loophole--it's the McCain fraud.

I think this situation illustrates the futility of the public finance laws (and many other election reforms) -- there is too much at stake in these elections and one should expect massive efforts to find and exploit loopholes.

Internet fundraising has shown to be a great fundraising leveler. Let's up the donation limits, get rid of the strange 527 laws with their arguable first amendment problems, and let the most effective candidate win (note that I didn't say the best candidate, that would be too utopian).
Better and faster disclosure (in real-time?) of donors and their affiliations would bring more sunshine into the mix.

You would still have the problem with, for example, sweetheart real estate deals -- I think there is considerable room for better financial disclosures and investment restrictions for politicians.

However, in terms of compliance with the law, I don't see the problem. Even if he had already received from public money I could see a case for allowing him to back out as long as he paid the public money back. As far as the loan is concerned, that's an issue between McCain and the lender.

Perhaps the Republicans on the thread will disagree, but just about every source I've read says that's not the case: If you actually draw the public money, or if you use the promise of public money as collateral for a loan, then backing out of the system is illegal.

Matt, a request for an argument isn't an expert opinion about anything. And your take on the FEC nominations is incredibly tendentious. The Democrats opposed the confirmation of a Republican nominee, and intended to use their majority to block his confirmation. That is entirely inconsistent with the principle followed since the commission's beginning, which is that each party is entitled to make its choice for nominees.

Hey, I'm for Obama and certainly won't be voting for McCain, but I just don't see the problem with what he's doing in this specific instance. He declared he was going to accept public funding and then changed his mind.

The problem is that once you tangibly benefit from your participation in the public campaign finance system (which McCain's campaign did), backing out again when the tide turns your way is having it both ways.

That would be fine if that were how the system were set up - that you could use public financing as a campaign safety net when things weren't going well, then rake in private money once you used public money to start winning.

But it's not. It's set up to force candidates into a fairly early choice between taking public money, and in return abiding by its restrictions throughout the primary season, or taking one's chances on one's ability to garner private contributions.

Does that help?

Having the funds to use AND using them is taking possession of them.

If there is a more useless group, more infected by irrelevance, than Common Cause, someone should direct me to them. I always like to donate to organizations with high-sounding names that do nothing when push comes to shove.

MW & LTC -

K, makes sense. If I were designing the system, I could see some sense in setting it up to make what McCain's doing legal - if he hasn't taken any money yet and if he can find some other way to satisfy his lender then no harm, no foul, right? But if that's not how the system works then that's not how the system works...

THANK YOU! I'm glad you pointed this out. I've been bugging Washington Post reporters about the radio silence from Fred Wertheimer, Steve Weisman and the other folks at Public Citizen, Common Cause and Democracy 21. I would hate to think their past loyalties to McCain would prevent them from carrying out their reform agenda.

Candidate uses promise of public funding to help secure a loan for his campaign.
This is a lie.

I'm confused here, Al. You're parsing the difference between a covenant and collateral, saying McCain didn't use the public financing as collateral (which would lock him into the system, legally).

But Matt never said "collateral". Read the line you yourself quoted!

The main issue is: knowing the law (because he was the principal sponsor of it!) and knowing that he needed the loan, but didn't want to actually abide by the rules, his team came up with an alternative wording that allowed him to use his public financing as collateral without technically using the public financing as collateral.

The only question is whether he was bending the rules or breaking them. He sure wasn't following the spirit of them - and he was the guy that wrote the rules!

Now, please explain to me how this whole pretzel-legal legerdemain fits into the concept of "Straight Talk".

Candidate uses promise of public funding to help secure a loan for his campaign.
This is a lie.

I'm confused here, Al. You're parsing the difference between a covenant and collateral, saying McCain didn't use the public financing as collateral (which would lock him into the system, legally).

But Matt never said "collateral". Read the line you yourself quoted!

The main issue is: knowing the law (because he was the principal sponsor of it!) and knowing that he needed the loan, but didn't want to actually abide by the rules, his team came up with an alternative wording that allowed him to use his public financing as collateral without technically using the public financing as collateral.

The only question is whether he was bending the rules or breaking them. He sure wasn't following the spirit of them - and he was the guy that wrote the rules!

Now, please explain to me how this whole pretzel-legal legerdemain fits into the concept of "Straight Talk".

seaside, "collateral" "secures" a loan. So when Matt says that the promise of public funding was used to secure the loan, he's saying something that isn't true.

Joe, what you're saying is that he did not violate the letter of the law, yes? I'm not a lawyer. I don't know how accurate either yours or Joe's claims are, but accepting your assertion - that he has technically done nothing illegal, that there is a distinct enough legal difference between a covenant and collateral for us to accept that a promise of using public funds to secure repayment if things go badly is not the same thing as using public funds as collateral - there is no question of the fact that he IS, without a doubt, flouting the intent and spirit of this law. Yes?

That's what disappoints me. Lack of honor and regard for the intent of the reform law. He's abusing the system, and I'm tired of Presidents who think it's their right to do so.

Al, what you're saying is that he did not violate the letter of the law, yes? I'm not a lawyer. I don't know how accurate either yours or Joe's claims are, but accepting your assertion - that he has technically done nothing illegal, that there is a distinct enough legal difference between a covenant and collateral for us to accept that a promise of using public funds to secure repayment if things go badly is not the same thing as using public funds as collateral - there is no question of the fact that he IS, without a doubt, flouting the intent and spirit of this law. Yes?

That's what disappoints me. Lack of honor and regard for the intent of the reform law. He's abusing the system, and I'm tired of Presidents who think it's their right to do so.

Ha! I was addressing Al, not Joe, in that last comment. What an impressive mistake.

Araya, what's the intent of the law? I confess, I don't know what it is. Since this seems entirely and obviously permissible, why shouldn't we think that was intentional?

As for lack of honor: are you talking about the candidate who made a solemn promise to take public funding for the general election if his opponent did, and then backed out of it, or are you talking about someone else?

It all depends upon what your definition of "depends" is.

Matt: It's actually a little worse than pathetic that Wertheimer won't cry foul: Democracy 21 has acted as counsel for McCain in campaign finance litigation, including McConnell v. FEC (2003) and FEC v. Wisconsin Right to Life, Inc. (2007)) and the FEC’s McCain-Feingold rulemaking proceedings since at least 2002. And, in their lobbying capacity, they've thrown a huge amount of logistical support and praise McCain's way. All this certainly suggests that their relationship with McCain is constraining them from callng out McCain for his ridiculous public finance shenanigans.

I hate to say this, but, if you step back a minute, what's preposterous is that the arcana of some election-finance law should cripple the abililty of the presumptive Republican candidate to campaign for president until Labor Day. That's, well, nuts.

I desperately want McCain to lose...but I thought our side was FOR real democracy, not for heavily-lawyered election-law gaming.

Joe - Why shouldn't we think that the law was intentionally created to be meaningless? Is that what you're asking? I suppose it's possible (who wrote the law again?), but that doesn't make anything I said less true. Laws should not be made to be broken or bent, especially not by potential leaders of this country.

And as for lack of honor: I hold all candidates to the same standard. I'm disappointed in any candidate who plays dirty. Now, in this instance I was referring to the candidate you were discussing, John McCain, as you well know.

McCain is employing a loophole so that he can avoid having to deal with a law. I don't like it. End of story. Answer that with a justification for McCain if you must, not with an attack on another candidate, please. It will be more constructive.

Thomas - Why shouldn't we think that the law was intentionally created to be meaningless? Is that what you're asking? I suppose it's possible (who wrote the law again?), but that doesn't make anything I said less true. Laws should not be made to be broken or bent, especially not by potential leaders of this country.

And as for lack of honor: I hold all candidates to the same standard. I'm disappointed in any candidate who plays dirty. Now, in this instance I was referring to the candidate you were discussing, John McCain, as you well know.

McCain is employing a loophole so that he can avoid having to deal with a law. I don't like it. End of story. Answer that with a justification for McCain if you must, not with an attack on another candidate, please. It will be more constructive.

I was replying to Thomas, not Joe. Another fantastic mistake.

Jesus. You know it's time to leave when you can't keep from making the same mistake twice. Good night, and good luck.

But Matt never said "collateral". Read the line you yourself quoted!

Well, that's a good point. I took Matthew's use of the word "secures" to mean the security for the loan - i.e., the collateral. But I suppose the alternative meaning of "secures" could simply be to obtain the loan. I think the former reading is the better one, though.

As to the points that avoiding the use of public funds as collateral for the loan violates the "spirit" or "intent" of the law, that's pretty lame. The intent of the law is to restrict the use of funds (or promise of funds) in certain ways; McCain didn't use the funds (or promise) in those ways, so I don't see any violation of the intent of the law. If the law intended to restrict what McCain did, it would have provided for such a restriction.

All of this simply shows the folly of campaign finance restrictions. If you write a law to prevent money from getting into a campaign in certain manners, the campaigns will always find a way around those restrictions. That doesn't violate the "intent" of the law at all, since the law only intended to restrict a few discrete financing techniques, and there will always be more. In many respects, I join a lot of Republicans who laugh at McCain being hoist on his own petard - McCain-Feingold was an abomination, and will probably cause me to sit out the election. But that's not going to prevent me from objecting to the Democrats' false statements regarding whether McCain used the the funds as collateral to secure the loan.

a request for an argument isn't an expert opinion about anything.

Mason certainly offered the opinion that McCain cannot withdraw from the system without FEC approval (unless every news outlet has misreported his letter). And he's suggesting that McCain's loan might be legally problematic, which is an indication -- from someone far more expert than you -- that there's an issue here. Presumably he isn't asking for an argument because he likes making work for himself.

As for my take on the FEC nominations being "incredibly tendentious," res ipsa loquitur, as usual.

Araya, I think most laws are bargains negotiated in Congress, not grand principles enacted by Congress. So we should assume that an interpretation of a law that say it means only this, when a motivating principle might take it further, is wrong. Further, I don't think that the McCain interpretation makes the law meaningless.

Al,

Why did the law intend to restrict those discrete financing techniques and not others? To set up arbitrary hoops to jump through? That seems unlikely. Rather, I suppose, the intent was to ensure that candidates who monetized the value of future public funds would have to abide by the spending limits required by the use of those funds.

While your discussion of the difference between a covenant and collateral is useful in the typical loan environment, here we have a case where, absent bad faith in the negotiations, there would be no practical reason for McCain's campaign committee to breach the covenant as it would require no real cost to McCain to comply with the covenant (the only cost would be to the US taxpayer) and would result in an ugly situation if he breached. Consequently, the distinction between collateral and covenant in this case is functionally a legal fiction. Of course, the fact that this is functionally a legal fiction does not, in fact, make it illegal or a violation of the public funding rules. I would expect that this is a question that may be subject to regulatory interpretation for the FEC. Were it not, I would expect that the FEC/Congress (I haven't had a chance to search out whether this rule is statutory or regulatory) would close this loophole in the future, as it completely defangs and makes a mockery of the rule.

That being said, what we are talking about is the intersection of law and politics, and the political matters nearly as much as the legal. McCain somewhat obviously gamed the public financing system in a manner at odds with his public pronouncements and perception. This is not much different than Obama pledging to "aggressively pursue an agreement with the Republican nominee to preserve a publicly financed general election", which is clearly different than a pledge to accept public matching funds.

Anyway, I appreciate having a not-too-heated discussion which is relatively rare these days. I'll check back in at some point, but am traveling in Europe for the next few days.

Matt, he's asking for an argument because his job is to decide things on a record. He needs an argument on the record, because he's concluded that the FEC needs to act to approve a withdrawal. (The conclusion isn't that McCain would be "breaking the law" (as you said) by withdrawing without approval, but that approval is actually necessary to withdraw.)

I agree with your res ipsa quip. I mean, the crap is coming from you, so of course it's tendentious.

Matt, he's asking for an argument because his job is to decide things on a record. He needs an argument on the record, because he's concluded that the FEC needs to act to approve a withdrawal.

He apparently specifically mentioned the loan. If the loan were "entirely and obviously permissible" as you say, why would he specifically ask for an argument on the record about it?

Another Republican expert (though no friend of McCain's), Brad Smith, says about a pro-McCain argument "This is well reasoned and I am inclined to respect Prof. Scarberry's opinion as correct, but I am not yet entirely convinced that it is right.... Despite its conditional nature, formally pledging to pledge an asset as collateral seems awfully like pledging that asset as collateral." And note from the update that even Pepperdine law professor Scarberry agrees that the language of the loan makes McCain's case harder than it seemed at first. So if you think that it's "entirely and obviously permissible," perhaps you should write to Smith and Scarberry to let them now.

[Smith agrees with you that the Democrats are causing the quorum problem by blocking Spakovsky, though he seems unaware that the Senate Democrats have offered an up-or-down vote on Spakovsky and the Republicans have refused. Note that blocking Spakovsky in an up-or-down vote would require the vote of at least one Republican or McCain-supporting independent.]

The conclusion isn't that McCain would be "breaking the law" (as you said) by withdrawing without approval, but that approval is actually necessary to withdraw.

Presumably the FEC chairman's conclusion is then that McCain is planning to break the law by spending in excess of the limit, without properly withdrawing from the system. Regardless, it's his opinion that McCain will be breaking the law as soon as he overspends the limit. Isn't that the issue?


seaside, "collateral" "secures" a loan. So when Matt says that the promise of public funding was used to secure the loan, he's saying something that isn't true.

So if MY post was intended to be a legal argument, you would have a point here. Al concedes that there is an alternative interpretation, but asserts that his original interpretation is better. Why is that you suppose? So that he can call MY's post a lie?

Not only that, but MY makes it clear later on that he's not looking at the legal aspect of the issue, but whether McCain's actions are ones that the reform community wants to encourage or not. In that context, how silly is it to assume that when MY refers to a (legal-speak) convenant as a (non-legal speak) promise used to secure a loan, he is instead claiming incorrectly that this promise constitutes (legal-speak) the assignment of collateral?

Frankly, I'm not sure whether this whole exchange is an example of how the process of becoming a lawyer makes you stupider, or just regular trolling.

It all depends upon what your definition of "depends" is.

McCain looks like he's old enough to have to wear a pair. That definition of 'Depends.' :D

MESSAGE

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Comments closed March 12, 2008.

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