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In FEC Moves, Some See Effort to Aid McCain
By Michael Luo
The New York Times
Friday 09 May 2008
For months, the White House and Senate Republicans have been content to let
a political impasse over vacancies at the Federal Election Commission persist,
sidelining the regulatory agency in the throes of a heated presidential campaign.
But on Tuesday, President Bush suddenly announced three new nominees to the
commission. He also backed away from Republicans' insistence that the
nomination of Hans von Spakovsky, a former Justice Department official who faces
vigorous opposition from Democrats, be voted upon with other nominees to the
commission.
The reason for the about-face?
Several Democratic officials familiar with the negotiations and watchdog groups
said they believed that Senator John McCain, the presumptive Republican nominee,
had been pressing the White House and Senator Mitch McConnell, the minority
leader, to resolve the issue.
Although Mr. McCain has been a longtime champion of campaign finance reform,
he also has an urgent pecuniary interest in the matter.
The agency, which monitors compliance of federal election laws, has had only
two commissioners out of a normal complement of six for months, leaving it without
a quorum and powerless to act. Without a functioning commission, campaign finance
experts said, Mr. McCain's ability to collect $85 million in federal
money for the general election through the country's public financing
system would be severely complicated.
"Without an act of the commission, you don't get the money,"
said Kenneth Gross, a campaign finance lawyer with Skadden, Arps.
Mr. McCain has already begun returning checks designated for the general election
to donors, but if the deadlock over nominees to the commission continues, campaign
finance experts said he would need either a court order or an act of Congress
to amend the statute so he could receive the public money.
President Bush also decided on Tuesday to pull a pending renomination of the
current chairman of the commission, David M. Mason, a Republican. Mr. Mason
raised questions this year about Mr. McCain's right to withdraw from
the public financing system for the primary.
Advocacy groups that work to counter the influence of money in politics immediately
assailed the White House action, arguing it could be construed only as a blatantly
political act, meant to benefit the McCain campaign.
"President Bush's dumping of Mason can only be viewed as a bald-faced
and brazen attempt to wrongly manipulate an important enforcement decision by
the nation's campaign finance enforcement agency," said Fred Wertheimer,
president of Democracy 21, an advocacy group, in a statement.
Jill Hazelbaker, Mr. McCain's communications director, did not directly
answer when asked specific questions about whether Mr. McCain or his staff had
pressed the White House and Mr. McConnell behind the scenes to end the deadlock
over the commission.
"McCain has consistently and publicly urged the Senate leadership and
the White House to take steps to resolve the impasse, and he is glad that Senator
Reid, Senator McConnell and the White House have now done so," she said
in an e-mailed statement, referring to Senator Harry Reid, the majority leader.
"The important thing at this stage is a speedy vote on the new nominations
so that the commission can go back to work."
Don Stewart, a spokesman for Mr. McConnell, also declined to say whether Mr.
McCain or his advisers had discussed the issue with the Republican leadership,
saying only that many had been pressing for a resolution to the dispute.
As for whether Mr. McCain lobbied specifically for Mr. Mason's ouster,
Trevor Potter, the campaign's lawyer and a former F.E.C. chairman himself,
dismissed the accusation in remarks posted on an election law blog. "These
are the president's appointments, and not Senator McCain's,"
he said on Election Law Blog, run by Rick Hasen, a Loyola Law School professor.
Mr. Potter contended that the campaign had no issue with Mr. Mason, arguing
that he had merely told the campaign earlier in the year that he believed the
commission needed to vote on Mr. McCain's withdrawal from the public
financing system for the primary, something the campaign's lawyers disagreed
with.
Mr. Potter said he believed that if Mr. Mason had remained on the commission
once a quorum was restored, he would have ruled in Mr. McCain's favor.
In his letter to Mr. McCain in February, Mr. Mason had raised questions about
whether Mr. McCain had used the promise of public financing to secure a $4 million
loan he obtained in the fall to keep his campaign afloat, which would have bound
him to accepting the public money.
Mr. McCain had applied for public financing for the primary when his campaign
was struggling, but he decided to bypass the system after his fund-raising improved.
The public financing system gives candidates access to millions of dollars in
matching money from a taxpayer fund but forces them to abide by strict spending
caps before the party conventions. Mr. McCain has by now far exceeded the $54
million cap that he would have been bound by under public financing.
The political deadlock over the commission had centered on objections of Senate
Democrats to the nomination of Mr. von Spakovsky, whose work at the Justice
Department angered civil rights advocates. Senate Republicans, led by Mr. McConnell,
a fierce critic of campaign finance regulation, demanded that Mr. von Spakovsky
be voted on in a package with other nominees, something the Democrats refused
to do.
The White House declined on Tuesday to withdraw Mr. von Spakovsky's
nomination but a spokeswoman, Emily Lawrimore, said Republican officials were
now willing to allow each of the nominees to be voted upon separately.
Bob Bauer, Senator Barack Obama's campaign lawyer, penned an essay on
his own legal Web site that sought to connect the dots with the White House's
announcement.
"In this one move, the White House ended McCain's accountability
for his use or abuse of the primary public financing system while putting him
in position to take money for the general," he said, adding: "It
is inconceivable that McCain was not informed of the plan. In fact, it is highly
probable that he was involved in its formulation or its approval."
At minimum, said several campaign finance experts, Republican officials obviously
understood the implications for Mr. McCain.
Even Mr. Gross, who represents clients from both parties, said the decision
to pull Mr. Mason's renomination made it difficult to believe that Mr.
McCain was not involved in some way.
"It is sort of further indicia that Senator McCain's fingerprints
are somehow part of the motivating factor of getting these commission seats
filled," Mr. Gross said. "I didn't get a license in detective
work, but I don't think you'd have to be a certified detective
to figure it out."
Asked how Mr. McCain could go about getting the funds released, without a functioning
commission, Mr. Gross said he could apply for a court order for the Treasury
Department to release the funds. But he added, "We've never had
this scenario before."
"From a procedural standpoint, it's not entirely clear how it
would happen," he said.
Congress could also pass some type of rider for Mr. McCain to obtain the money
without a functioning commission, but that would force Mr. McCain into the awkward
position of making entreaties to a Democratic-led Congress so he could obtain
the money needed for his campaign.
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