April 14, 2008

Democrats Try to Sue Their Way Into the White House. Again.

Back in 2000, after Al Gore lost the presidential race to George W. Bush, he did something unprecedented: He ordered his crack legal team to file lawsuits to overturn the election and declare himself the winner.

Gore didn't just sue for recounts; he also tried to suppress many overseas votes by servicemen. And in a scheme as stunning in its audacity as it was represensible in its aim, the Gore team sued in Martin and Seminole counties to suppress the entire absentee vote -- thus trying to disenfranchise fully 25,000 voters, Democrat as well as Republican. (Why would they do that? Because those two counties went heavily for Bush, and the absentee ballots alone accounted for a net of nearly eight thousand extra votes for the Republican. Since Bush only won by 537 votes, a loss of 8,000 disenfranchised voters would have meant that Al Gore would have won by 7,500.)

This year, however, the Democrats have gotten craftier: They've decided to avoid the rush by filing their lawsuits early, hoping to sue John McCain out of the race before the first vote is cast. That way, likely Democratic nominee Barack H. Obama could fight the sort of race he is more comfortable (and experienced) fighting: one where his opponent is either fighting in handcuffs or is absent altogether (see our earlier post Chicago Rules for enlightenment).

This is from "the Trail," the Washington Post's campaign blog (I'm sorry, its "daily diary of campaign 2008," not a blog):

The Democratic National Committee announced today it will file a lawsuit in U.S. District Court Monday to force Sen. John McCain to stay in the public financing system until he formally accepts the Republican presidential nomination in September.

The lawsuit asks the Court to compel the FEC to conduct an investigation into McCain's decision to unilaterally withdraw from the public financing system, and, should the FEC continue to fail to do so, to allow the DNC to sue McCain directly for disobeying campaign finance laws.

"We believe he's breaking the law every day," said DNC Executive Director Tom McMahon on a conference call Sunday.

The WaPo blog -- diary! -- doesn't really explain what this suit is all about in this entry... so I turn to my old Watcher's Council colleague Wolf Howling to explain what's actually happening (which the Wolfman did back in February -- using as his source an earlier, more explanatory entry from "the Trail." Go figure.)

McCain needs to be hammering home the anti-Obama message starting as soon as it becomes clear that Obama will be the nominee -- which will likely be March 4. But it may well be that McCain is hamstrung by FEC rules and unable to spend any more than just a few million dollars between now and the nominating convention in September. That would be catastrophic.

The questions at issue revolve around public campaign financing during the two phases of the campaign, the primaries and then the general election. A candidate can accept public financing in one, both, or neither. If a candidate opts to accept public financing, it comes with very specific spending limits. If McCain is found to have accepted public financing in the primaries, then his spending limit is $50 million during the primaries -- and he is close to that limit already.

The problem began when McCain's campaign was on the ropes last summer. He applied for public financing, since the alternative was to quit the race.

Now that itself would not require him to accept it; he would have to have actually taken the money to incur that obligation. And in the end, he did not use any public funds directly. Thus he argues that he did not legally accept public financing and is not obliged to observe the spending restrictions.

Yet there is what Larry Elderberry would call "a big butt": While McCain did not actually take the money, or even use it as collateral for a loan (which counts as using it), he did offer it as potential collateral; he obtained a $1 million loan, for which the public financing would have been collateral... had he ever used any of that loan money. But he did never did, because his own fundraising picked up.

The Democrats, however, argue that saying you might use the public funds as collateral (even if you don't end up doing so) nevertheless locks you into public financing -- and those killer spending limits. As Wolf Howling put it:

That notwithstanding, McCain has now notified the FCC that he intends to withdraw from the public financing agreement during the primaries. The rules say that if you dip into the public funds – which McCain hasn’t – or you use public funds as collateral for a loan, than you are obligated to follow the public financing rules.

So, the question is, did McCain use those funds as collateral? That is a legal question, and one has to look to the terms of his loan.

McCain's loan from Fidelity involves what experts termed a highly unusual arrangement: He pledged that if he left the public financing system and started to lose the election, he would reenter it and use the federal funds to repay the loan.

"The loan terms were carefully drafted to exclude from the bank's collateral any matching funds," to assure McCain would have the "flexibility to withdraw from the program," said the letter from lawyers Matthew S. Bergman and Scott E. Thomas. Thomas, a Democrat, is a former FEC chairman.

Only "future certifications of matching funds" were pledged as collateral, the letter says -- and that would have occurred only if McCain had started to lose, which he never did.

Amusingly enough, this scheme was not invented by the McCain people; it was lifted whole and intact from the identical scheme used by some feller named Howard Dean, when he pulled the same dodge back in 2004 and got away with it.

McCain is in a bit of a bind; he needs a ruling from the Federal Elections Commission, saying that, like Dean, McCain did not actually "accept" public funding, thus isn't trapped in the spending limits. But the FEC can't vote, because it only has two of its six seats filled, which is two commissioners short of a quorum.

And why are they short handed? Because one Democratic senator is blocking the GOP appointment to the FEC (they must be appointed in pairs, one Democrat and one Republican, so no party has an advantage). Until that senator lifts his hold, the FEC will remain unable to hold a vote or issue the opinion McCain needs.

The senator who put the hold on the Bush nominee is (wait for it) Barack H. Obama... the very candidate poised to benefit most from this quagmire.

And now, the Democrats have actually filed a suit in federal court, demanding that the third branch of government (the Judiciary) cooperate with them in rigging the vote for the second branch of government (the Executive):

Republican National Committee spokesman Alex Conant called the pending suit "total nonsense."

"It is now clear that the trial-lawyer Democrats' idea of campaigning for President is to hire lawyers and file frivolous lawsuits. It's unfortunate the DNC is now trying to drag the federal courts into their circus as well," he said in a statement. "As for the lawsuit itself, it is clearly without merit and filed only for public relations purposes. The FEC's own regulations provide that the Commission must be given 120 days to review any complaint before they may be sued in court. It has only been 49 days since the DNC's initial meritless complaint to the Commission was filed, and thus we expect this lawsuit to be thrown out at the first opportunity."

I would not be so sanguine, however; Democrats have proved remarkably adept overall at getting the courts to do their dirty work for them: Remember the Supreme Court of Florida -- a.k.a., the aptly abbreviated SCOFLA. So I stand by my earlier recommendation to John McCain from "Chicago Rules":

Tell the FEC to FO. McCain should ignore the FEC and raise and spend as much as he needs, without regard to the primary spending limits for those joining the federal campaign-finance system. If the FEC threatens him, laugh in their faces. What are they going to do, vote to fine him? They can't vote to impose a penalty -- they don't have a quorum! Remember? That's what started this whole nonsense.

If McCain cannot stand up to the Democratic-Party shenanigans, how can he hope to stand up to the Iranians, the Syrians, Red China and North Korea, the U.N., or even al-Qaeda? But I expect he will stand up to the DNC; I expect he'll tell them to go jump in the lake. The people's right to a free and fair election outweighs any pedantic parsing that McCain somehow inadvertently squeezed, without ever intending to, some arcane trigger for the whole campaign-finance monstrosity.

Put aside both schadenfreude and a sense of irony; this issue is bigger than McCain personally: This is an affront to all citizens of the United States, just as it would have been had the Democrats been able to freeze out of the election all those absentee voters in two Florida counties.

So come on, Sen. McCain; forget about your own shameful involvement in unconstitutional (no matter what the Supreme Court said) restrictions on free elections. Just rise up off your duff and loudly proclaim, for all to hear, that no matter what anyone says, you will continue to campaign vigorously, fundraise prodigiously, and spend freely.

And tell the DNC they can fling off their suits and drop their briefs to the floor.

Hatched by Dafydd on this day, April 14, 2008, at the time of 12:37 AM

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