Politics & Government

Congressional Democrats Charge John McCain With Violating Same Campaign Finance Rules He Created

Two new campaign ads funded by -- and starring -- Senator John McCain have Congressional Democrats in a huff.The ads are for Congressional candidates Jesse Kelly and Ruth McClung and are similar-in-nature to "campaign ads" run by Maricopa County Sheriff Joe Arpaio, in which he didn't so much hype himself,...
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Two new campaign ads funded by — and starring — Senator John McCain have Congressional Democrats in a huff.

The ads are for Congressional candidates Jesse Kelly and Ruth McClung and are similar-in-nature to “campaign ads” run by Maricopa County Sheriff Joe Arpaio, in which he didn’t so much hype himself, but rather bash the opponents of other candidates he supports.

As we pointed out yesterday, McCain’s support of Kelly is a bit on the hypocritical side, too. Read all about that here.

The Democratic Congressional Campaign Committee filed a complaint
against The Maverick with the Federal Election Commission, claiming the
ads should be considered a political donation to a candidate that
exceeds the non-cash donation limit set forth in the McCain-Feingold
campaign finance reform act.


“John McCain chose to air television commercials that
violate the campaign finance legislation that bears his name, rejecting
McCain’s years of work on campaign finance reform as well as the legacy of
Doris ‘Granny D’ Haddock, a 90-year-old woman who walked across the country in
support of McCain’s efforts to enact fundamental campaign finance reform,” says
Jennifer Crider, DCCC spokesperson. “Senator McCain either doesn’t understand
the law bearing his name or he has deliberately chosen to break it. 
Senator McCain should do the right thing and immediately pull down these
illegal ads.”

Check out the full complaint below.

October 19, 2010

Christopher Hughey, Esq.

Acting General Counsel

Federal Election Commission

999 E Street, N.W.

Washington, DC  20463

Dear Mr. Hughey:

The Democratic Congressional Campaign Committee, by and
through its general counsel, files this complaint under 2 U.S.C. § 437g against
Senator John McCain; Friends of John McCain, Inc.; Ruth McClung, a candidate
for Congress from the 7th District in the state of Arizona; Ruth McClung for
Congress; Jesse Kelly, a candidate for Congress from the 8th District in the
state of Arizona; and Kelly for Congress (“Respondents”), for
violations of the Federal Election Campaign Act.

Violating coordination rules that were written as a direct
result of McCain-Feingold, Senator McCain is sponsoring an advertisement for
two Republican House candidates in vast excess of his legal limits to their
campaigns.  The Commission should open an immediate investigation, stop
these ongoing violations, and see that Senator McCain commits no further
violations of his own law.

A.               
FACTS

John McCain is the senior Senator from the state of
Arizona; he is on the ballot for re-election this November.  He is the
proud architect of the Bipartisan Campaign Reform Act of 2002,
“McCain-Feingold,” which fundamentally reshaped the raising and
spending of money in federal elections.  McCain-Feingold required tough
new rules on coordinated communications.  And it is these very rules that
the McCain campaign is now choosing to ignore.

On or about October 18, 2010, Senator McCain’s authorized
campaign committee, Friends of John McCain, Inc., began airing two
advertisements that feature him standing alongside Senator Jon Kyl, his junior
Senator.  In one advertisement, the senators attack Congressman Raul
Grijalva and urge the election of his opponent, Ruth McClung.  The
advertisement, entitled “Vote Ruth McClung,” can be found here: http://www.youtube.com/watch?v=MEDoaGQE8_I
In the other, the senators attack Congresswoman Gabrielle Giffords and urge the
election of her opponent, Jesse Kelly.  That advertisement, entitled
“Vote Jesse Kelly,” can be found here: http://www.youtube.com/watch?v=pWYD1JuRYWw
On information and belief, both ads are now running on Arizona television
stations, in McClung and Kelly’s respective districts.

Senator McCain personally approved these ads.  Both end
with him saying, “I’m John McCain and I approve this message.” 
The text disclaimer states “Authorized by John McCain and paid for by
Friends of John McCain.”

B.                
SENATOR MCCAIN IS ILLEGALLY SUPPORTING MCCLUNG AND
KELLY IN EXCESS OF THE LIMITS

The Federal Election Campaign Act provides that
“expenditures made by any person in cooperation, consultation, or concert,
with, or at the request or suggestion of, a candidate, his authorized political
committees, or their agents, shall be considered to be a contribution to such
candidate.”[1]  At the direction
of McCain-Feingold, the Commission wrote rules providing specifically that a
communication will be considered an in-kind contribution to a campaign if it
(1) is paid for by an entity other than the campaign; (2) contains express
advocacy; and (3) is coordinated with the campaign.[2]

Under McCain-Feingold, agreement or formal collaboration
is not required for a finding of coordination.[3] 
Indeed, Senator McCain has often complained that the FEC’s coordination rules
are not strict enough, and has gone to court to strengthen them.  See,
e.g., Shays v. FEC,
No. 04-5352, 2005 WL 622966 (D.C. Cir. 2005) (Brief
Amicus Curiae of Sen. McCain et al.) ( “The loopholes created by
the regulations may seem small and hyper-technical to some. But they are
neither.  In fact  …any loophole, no matter the size, will be
exploited and lead to consequences directly at odds with the purposes of BCRA.
“).

There can be no doubt that these ads were coordinated with
McClung and Kelly, even under the current FEC rules as commonly
understood.  It is utterly implausible that the state’s most senior
Republican, who appeared at a Tea Party rally for these two candidates less
than ten days ago,[4] would have commenced
this ad blitz without their assent, substantial discussion or material
involvement.

Moreover, if not coordinated, then the ad would be
independent expenditures.[5] 
Yet tellingly, neither Senator McCain nor his campaign appears to have filed
the necessary statement with the Commission, under penalty of perjury, “as
to whether such expenditure was made in cooperation, consultation, or concert
with, or at the request or suggestion of a candidate …”[6]  By their own conduct, Senator
McCain and his campaign have tacitly admitted that the ads are coordinated.[7]

1.                 
The McCain Campaign Has Made Excessive Contributions to
McClung and Kelly

As coordinated communications, these advertisements
constitute in-kind contributions from Friends of John McCain, Inc. to the
McClung and Kelly campaigns.  The value of the advertisements has
certainly exceeded the contribution limit.[8] 
Thus, Senator McCain’s campaign has made – and the McClung and Kelly campaigns
have received – illegal in-kind contributions.

2.                 
The McCain Campaign Has Violated the Conditions of Its
Status as Senator McCain’s Authorized Committee

The Federal Election Campaign Act prohibits an authorized
campaign committee from supporting more than one candidate.[9] 
A special exception allows Senator McCain’s campaign only to contribute up to
$2,000 to another candidate; it makes no allowance for larger contributions or
independent expenditures.[10] 
And yet the McCain campaign has spent in vast excess of this limit.  It no
longer meets the statutory conditions for authorized committee status, and may
not enjoy any of its benefits.

C.               
REQUESTED ACTION

This is not the first time Senator McCain has had trouble
complying with his own law.  In 2007, the Commission came to the brink of
litigation against Senator McCain.  It found reason to believe that he
violated the soft money fundraising restrictions, and its general counsel
recommended a finding of probable cause that he broke the law.  The
Commission ultimately exercised its prosecutorial discretion to take no further
action.[11]

Especially at this late hour in the campaign, as he seeks
wrongfully to tilt the balance in two contested House elections, the Commission
should take immediate action to enjoin Senator McCain and his campaign from
further violations.  It should seek the maximum penalties permitted by
law.  And given Senator McCain’s professed knowledge of campaign finance
law, the Commission has no evident alternative but to follow McCain-Feingold
and determine whether the violation of law was knowing and willful, hence requiring
referral for criminal prosecution.[12]

Very truly yours,

Brian G. Svoboda
General Counsel
Democratic Congressional Campaign Committee

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