One of the great ironies of misusing and manipulating a law, after advocating its strict enforcement, is that you empower and validate the opponents of that very law. Case in point: I don't usually agree with Brad Smith, the former Federal Elections Commissioner who now runs the Center for Competitive Politics, which is kind of a mirror-image of reform organizations, advocating total deregulation of money in politics.
Smith had a long post yesterday, with the title, "What a Tangled Web We Weave: Everything You Need to Know About John McCain and Matching Funds," which got even deeper in the weeds than I have. Smith, as well as current FEC chair David Mason, who is also an anti-reformer, are clearly just enjoying tweaking McCain, who has treated them with self-righteous contempt. (While not agreeing with the anti-reformers who oppose all regulation and public financing, I've long argued that the libertarian criticisms of some campaign reform should be taken seriously -- they are often correct.)
Smith points out something I had not fully realized until this weekend: In addition to the tangible benefit of using a loan to get the benefit of public financing without the spending limits, McCain also took a material benefit from public financing, in the form of automatic qualification for the ballot in Ohio and several other states:
Senator McCain used his FEC certification for at least one other purpose. 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 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, and most of the presidential campaigns 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 money and resources to organize and gather signatures to 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.
Smith makes two points I disagree with: First, that by blocking the nomination of vote fraud lawyer Hans von Spakovsky to the cast of Hogan's Heroes FEC, Senator Obama is "using his power as a Senator to directly hamstring his opponent's campaign," by denying a quorum on the FEC that could rule on McCain's request. That's ridiculous. First, there's zero indication that McCain wants a quorum on the FEC, because it might actually, um, enforce the law. Second, while Smith is right that each party usually gets its own appointees to the FEC (including, after a hold by McCain, Smith, in 2000), there has to be some line, and von Spakovsky, having overruled Justice Department staff attorneys to protect the Georgia voter ID poll tax, has clearly crossed it.
Second, Smith argues that this proves that all public financing of campaigns is a waste of money, which of course is not true. Public financing like the Arizona "clean elections" system or New York's generous matching funds system is very different from the presidential: most candidates participate, it allows people to run who wouldn't otherwise, and they are well enforced. As Democratic election lawyer Bob Bauer put it, "Smith, by making of McCain’s conduct an indictment of the system, surprisingly lets his old adversary off the hook. But it is McCain’s conduct, and only that conduct, that is the issue, to be examined under the unforgiving standards that the Senator has advocated for others."
-- Mark Schmitt
