Q: I do not believe Sen. John McCain (R-Ariz.) should be elected
president, and I am doing whatever I can to prevent it. One idea that occurred
to me was to file an ethics complaint against him. However, I wasn’t sure
whether a regular guy like me could file such a complaint with the Senate. May
Also, I wouldn’t want to file a complaint unless there were legitimate grounds.
I searched for news stories regarding ethics issues for McCain and identified
two potential grounds: (1) McCain unilaterally backed out of public financing of
his primary campaign; and (2) a March fundraiser for him in London that was
illegally funded by foreign nationals. I’m no expert on ethics violations. Are
either of these grounds for a complaint?
A: The 2008 election marks the first time in the country’s history
that two sitting Senators are competing for the presidency. This means that it
is also the first time that both candidates are vulnerable to potential Senate
ethics complaints. Your first question is: Who may file such a complaint?
Believe it or not, anyone can. This is in stark contrast to the House, where
only a Member can file a formal complaint.
When someone files a complaint, the Ethics Committee typically conducts a
“preliminary inquiry,” which may involve depositions, subpoenas, interviews and
sworn statements. With two Senators competing for the presidency, you are right
to suggest that an ethics complaint could become a political weapon. This column
addresses your potential complaint against McCain, and next week I will address
a question regarding a potential complaint against Sen. Barack Obama (D-Ill.).
You propose filing a complaint against McCain for violations of campaign
regulations. In general, the Federal Election Commission has jurisdiction over
such regulations, but the Ethics Committee might consider some FEC regulation
violations to be ethics violations as well. Broadly, the committee has stated
that it will act on allegations of violations of any law or rule relating to a
Senator’s performance of official duties or misconduct that may reflect on the
Senate. With those general guidelines in mind, let’s turn to the specific bases
you have proposed.
The first concerns McCain backing out of public financing of his primary
campaign. Last year, McCain applied for the presidential primary matching
payment program, under which candidates can receive public funding. McCain
certified to the FEC that he would comply with the many eligibility
requirements, including a spending limit of about $50 million. In December 2007,
the FEC certified McCain’s eligibility for the program. In February 2008, before
he received any public funds, McCain sent a letter to the FEC stating that he
was withdrawing from the program. The FEC replied that withdrawal would require
an affirmative vote of four FEC commissioners and that it therefore considered
McCain’s letter to be a mere request to withdraw.
The Democratic National Committee then filed an FEC complaint against McCain
based on two grounds. First, the DNC said, even though the FEC had not yet
approved McCain’s request to withdraw, McCain was already violating the
eligibility requirements, including the spending limit. This, the DNC argued,
violated FEC precedent, which holds that participation in the program
constitutes a binding contract with the FEC from which a candidate may not
unilaterally withdraw. Second, the DNC said, the FEC could not in any event
release McCain from the program because he had already pledged his eligibility
in the program as security for a loan.
It would be difficult to argue that either allegation is grounds for an
ethics complaint. When McCain attempted to withdraw from the program in
February, the FEC did not have enough commissioners for a quorum and therefore
could not release him. This meant McCain could either go on complying with the
spending limit and other eligibility requirements until the FEC had enough
commissioners to vote, or proceed as if he was no longer in the program. It now
appears that, had there been a quorum at the time of McCain’s letter, the FEC
would have permitted him to withdraw. This is because last week the FEC
unanimously ruled that McCain’s loan terms did not prevent him from withdrawing
from the program.
Let’s turn to the other grounds you have proposed for an ethics complaint. In
April, Judicial Watch requested that the FEC investigate whether McCain’s
campaign violated regulations by holding a fundraiser at London’s Spencer House
without paying for the use of facility. This, Judicial Watch argued, would be an
in-kind contribution from the owners of the Spencer House, who are not U.S.
citizens, and would therefore violate FEC regulations prohibiting contributions
from foreign nationals.
If true, such a violation might also violate ethics rules. Broadly, the gift
rule prohibits Senators from accepting a gift of any kind unless it meets one of
the many exceptions. One allows Senators to accept campaign contributions that
are “lawfully made” under FEC rules. Here, you could argue that the campaign
contribution does not qualify for the exception because it was not “lawfully
made.” Therefore, you could contend that the McCain campaign’s use of the
Spencer House violated the gift rules and is grounds for an ethics complaint.
Although the FEC has not reached a decision on Judicial Watch’s request,
McCain’s campaign has said it had an agreement under which it paid for the use
of the venue, catering and other costs for the event. Assuming the campaign paid
an appropriate rate and did not accept any contributions from foreign nationals,
there would be no grounds for an ethics complaint.
In sum, complaints based on the grounds you have proposed might be difficult
to sustain. Therefore, unless additional searches turn up other grounds for a
complaint, your efforts might be better directed elsewhere. I hear there’s a
convention going on this week.
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