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As you may recall, John McCain was one of the "name" sponsors of the McCain/Feingold campaign finance reform bill which created, inter alia, the federal matching funds program.

You know when you check that little box on your federal income tax form and donate $3 to the matching fund? That money is used to match the first $250 given from each and every donor to a federal candidate IF that candidate abides by certain spending limits and other rules.

After the Keating Five scandal in which Senator McCain intervened in the investigation of a savings and loan at the behest of one of McCain's large money donors, he co-sponsored the McCain-Feingold Act, which limited large campaign donations from corporations and regulated donations from individuals as well as ending the practice of "soft money".

Under his eponymous legislation, Senator McCain had the option of joining the matching funds program. He was not compelled to do so. Once he joined, he could--with the concurrence of the FEC that his campaign had NOT benefited financially--drop out prior to the time he either received matching funds or used the certification of eligibilty for funds to secure a campaign loan.

Well, Sen. McCain -- who of all people save Russ Feingold should have known better -- didn't get an FEC concurrence prior to dropping out of the matching funds program.

To recap: he got a certificate of eligibility for matching funds. He used that certification as contigent collateral for a loan to his campaign. He got the loan and spent the loan money. Sounds like he certainly benefited financially from the matching funds, yes?

So the DNC filed a complaint with the FEC. The FEC, which didn't have a quorum and therefore could not act, didn't act on the complaint. The last remaining Commissioner did send a strongly worded letter--bless him--but I don't think anyone believes that a letter from a single commissioner has any legal effect--though it certainly provides some expert opinion evidence.

Under federal election law, if the FEC doesn't act on a complaint within 120 days, the complainant can sue the FEC in federal court in DC to compel them to investigate the complaint. The DNC filed sooner than 120 days because, they argued, the FEC did not have a qorum and could not act on the complaint. That suit was thrown out, the court reasoned that if the WH and Congress got off their collective rear ends, the FEC vacancies could be filled within the 120 days, so the complainant has to wait out the time period.

So, the 120 days is up next Tuesday. And the DNC has a nice new shiny set of litigation papers ready to go next week. Once the complaint is filed in federal Court the FEC has 60 days to respond, either by opening an investigation or by putting in an answer saying why they don't have to investigate (for instance if a particular complaint even if true would not be a violation of federal election law).

In a perfect world, if the DNC prevails and as quickly as is feasible, the FEC could, in theory, issue a ruling aginst Senator McCain before the general election. The fines, in theory, could run in the tens of millions of dollars.

But the wheels of justice usually grind excruciatingly slowly, at least in my personal experience. I'm not holding my breath that this will be an October surprise. Still, I am glad to see the DNC go on the offense AND over a matter involving upholding the rule of law. I like that.

photo by wef