DNC heads back to court over McCain

The committee says it'll try again to sue federal election authorities, hoping they'll crack down on John McCain's campaign spending.

By Mike Madden
Published June 17, 2008 3:43PM (EDT)

The Democratic National Committee is trying again to get federal election authorities to look into whether John McCain is breaking campaign finance laws.

Last fall, his campaign nearly bankrupt, McCain took out a $4 million loan that was secured in part by a promise to take federal matching funds if necessary to help pay it off. Under the terms of the loan, failing to win upcoming primaries might have triggered that clause. He had been declared eligible for the matching funds, which would have limited his spending before the Sept. 1 Republican National Convention to $51 million. But McCain won contests in New Hampshire, South Carolina and Florida, putting him on the path to the Republican nomination and -- more important, from his bank's point of view -- bringing in millions of dollars in campaign contributions. Before the Federal Election Commission actually gave any cash to McCain, his lawyers told the feds he wasn't going to take the match after all.

But the FEC doesn't have a quorum right now, and the commission never officially responded to McCain's notice. Democrats say he can't withdraw from the matching program unless the FEC agrees to let him out; election lawyers (both Republicans and Democrats) have told me the law is actually a little murky on that question. Since he's now spent more than $72 million, McCain would be breaking the law if the DNC is right.

Unfortunately for Howard Dean & Co., the formal complaint the DNC filed against McCain is caught in the same limbo as McCain's request to get out of the public financing system: With no quorum, the FEC can't act on it. Democrats sued the FEC in April, trying to get a court to order the commission to investigate McCain's situation anyway. But a U.S. District Court judge threw the suit out, saying the DNC had to wait 120 days before the FEC could conceivably be ordered to do anything with the complaint.

Now that time has run, and the DNC says it'll file another suit on June 24, the 120th day. "John McCain is breaking the law and doesn't seem to care," Dean said in a press release.

But it's not clear that the Democrats would win even with a quorum -- the bipartisan FEC is notorious for dragging its feet on complaints. Chances are the election will have come and gone before the commission does anything about this one.

But that isn't really the point of the DNC's complaint, or the lawsuit. John McCain's name, after all, is on the campaign finance laws he's being accused of breaking -- this whole thing is about chipping away at his "Straight Talk"-ing, reformer image. So even if the judge throws out this lawsuit again, the DNC might still win.

Update: The Republican National Committee thinks this is about politics, too. "Having been thrown out of court just one month ago, the DNC now announces that it will once more file the same meritless lawsuit, again wasting judicial resources for its own political agenda," RNC counsel Sean Cairncross said in a press release. The GOP will try to have this lawsuit thrown out, as well.

Mike Madden

Mike Madden is Salon's Washington correspondent. A complete listing of his articles is here. Follow him on Twitter here.

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Campaign Finance Howard Dean John Mccain R-ariz.