We now have the exact language of John McCain's "second loan," and it is a legal masterpiece, albeit an ethical travesty. Based on the Washington Post report, I inferred that McCain had not excluded public matching funds from the collateral for his additional loan. But it's much more complex than that. The second loan, for $1 million, was actually a modification of the first, and so it continued to exclude the certification for matching funds from the loan's collateral. But it included this remarkable addition (which I'm going to quote in full just so no one thinks I used an ellipsis to distort the meaning):
Additional Requirement. Borrower and lender agree that if Borrower [McCain's campaign commitee] withdraws from the public matching funds program, but John McCain then does not win the next primary or caucus in which he is active (which can be any primary or caucus held the same day) or does not place at least within 10 percentage points of the winner of that primary or caucus, Borrower will cause John McCain to remain an active political candidate and Borrower will, within thirty (3) days of said primary or caucus (i) reapply for public matching funds, (ii) grant to Lender, as additional collateral for the Loan, a first priority perfected security interest in and to all Borrower's right, title and interest in and to the public matching funds program, and (iii) execute and deliver to Lender such documents, instruments and agreements as Lender may require with respect to the foregoing.
(Here's the document: http://query.nictusa.com/cgi-bin/fecimg/?_28039612468+0. From this link, you can read the document by page or produce a pdf. Much of it is blurry and boilerplate, until you get to the loan modification agreement starting page 21, which is legible.)
What does this mean? It means that rather than pledge his existing certification for matching funds as collateral for the loan, which would bind him to the system and thus the spending limits, McCain carefully pledged to seek to re-enter the system later, and to use a non-existent future certification as collateral. And while the system is "voluntary," McCain essentially traded away for cash his right to choose whether to participate in the system, and even his right to drop out of the presidential race, allowing the bank to force McCain "to remain an active candidate" in order to reapply for and qualify for funds. He was betting the spread (10 points) on his own primary performance! I don't think it's an exaggeration to say this is a promise to perpetuate a fraud on the American taxpayers: if he no longer intended to seek the presidency, he made a legally-binding promise to pretend to remain in the race just long enough to collect public money to repay the loan.
Is this illegal? Who knows. Note that it took several days of discussion among top lawyers and former FEC commissioners to figure out whether it was even possible to opt out of the public financing system after opting in and qualifying for funds. No one's ever done that. And therefore, no one's ever opted back in, after opting out, after opting in. And therefore, no one's ever borrowed on the basis of a promise to opt back in, after opting out, after opting in. Is your head exploding yet?
What we know is that McCain found a way to use the public funds as an insurance policy: If he did poorly, he would use public funds to pay off his loans. If he did well, he would have the advantage of unlimited spending.
There's a reason no one's ever done anything like this. It makes a travesty of the choice inherent in voluntary public financing, between public funds and unlimited spending. I've said it before, and I'll say it again: Legal or not, it should bring to an end whatever tiny thread of credibility John McCain still has as a straight-talker or reformer of the political process.
-- Mark Schmitt