mccain-lieberman.thumbnail.jpgEarlier this year, Fred Werthiemer of Democracy 21 was shaking his finger at Barack Obama for breaking what he perceived to be a promise to use the public financing system should Obama be the Democratic nominee.

“I’m concerned with the position the Obama campaign is taking,” Mr. Wertheimer said. “He is now saying this is an option. But they made a commitment in 2007 to do this. There were no conditions, no arguments, that ‘we’ll decide this when we get the nomination.’ I think it’s very important for Senator Obama to reaffirm the commitment that he made.”

But what Obama said was, "If I am the Democratic nominee, I will aggressively pursue an agreement with the Republican nominee to preserve a publicly financed general election," which caused groups like the Campaign Legal Center, Common Cause, Democracy 21, the League of Women Voters, Public Citizen and U.S. PIRG to write a letter to Obama urging him to abide by his "promise."

Well the whole thing’s a bit moot now, because what Obama said he would do is pursue an agreement with the Republican nominee — and that presumptive nominee, John McCain, is thumbing his nose at the public financing system — ironically breaking the very law with his name on it (McCain/Feingold).

The DNC filed a complaint today with the FEC you can read here. But essentially, McCain signed a candidate agreement in August of 2007, seeking a certificate of eligibility for matching funds with the FEC. On December 20, the Commission announced it had certified McCain to receive federal matching funds. But checks for matching funds generally don’t get written until February or March, and the cash strapped McCain campaign needed money before that.

So on January 31 2008, the McCain campaign disclosed that it had obtained a $4 million line of credit, and had already drawn $2,971,697 of that credit.

The laws covering public financing require that you can only spend $54 million during the primary, and McCain’s reports say that as of January 31, 2008 he had already spent $49,600,000 — which means he’s already probably over that limit. So to nobody’s surprise, on February 6, he sent a letter to the Commission announcing that his campaign was withdrawing from participation in the federal primary election fund program.

Well that would all be fine and dandy except as McCain well knows, you can’t just wave a magic wand and do that.

McCain is saying that Howard Dean and John Kerry also withdrew from public financing after they applied for it, but both of them pulled out before certification and they had a vote of the FEC board which allowed them to do it. So did Dick Gephardt [have a vote of the FEC board -- ed]. Further, they hadn’t materially benefited from being in the public financing system — and McCain has. McCain was able to get free ballot access in Kentucky, Montana, Ohio and Delaware because of his participation. And without grass roots support — which McCain does not have — gathering signatures would have cost him a pretty penny.

Further, the law quite carefully stipulates that if McCain’s loan was obtained by pledging money he was to receive from public financing as collateral, he can’t opt out of the system. And as Mark Schmidt says in his analysis, McCain’s convoluted tapdance around that subject seems like an attempt to flout the law without actually breaking it. It’s too cute by half. Which is why the FEC sent a letter to McCain saying that he can’t just opt out of the system and they want some answers about the loan.

Regardless, the Republican leadership in the Senate is currently keeping the FEC from having a quorum that could vote to give McCain a waiver to get out of the system (remember our old friend Hans Von Spakovsky?) Which means that at this point in time, they can’t grant one. McCain has no doubt reached if not exceeded the spending cap, and as Mark Schmidt says, the "maverick" is basically saying to the FEC — "come and get me!"

So the question is — McCain, once the darling of the reform groups, is now openly gaming the system he helped to create. Fred Wertheimer and his friends at the Washington Post editorial board were all over Barack Obama for a perceived infraction that had absolutely no legal implications — so why are they so silent about John McCain flipping them all the bird?