Wednesday, October 04, 2006

The Court of McCain Issues Its Decision

John McCain, who has been busy shedding his "straight talk" reputation lately, has decided to lend his help to the Green Team in its hour of need.

It's McCain's contention that Congress did not intend to ban shifting federal campaign money into a state account when it passed the Bipartisan Campaign Reform Act (BCRA) in 2002, a bill that McCain co-authored and championed with Russ Feingold.

The Republican Party of Wisconsin (RPW) proceeded to make McCain's statement the jumping point for this jaw-dropping commentary: "McCain issued a brief statement on Tuesday clearing Green’s transfer." Added new RPW chief Brad Courtney, "This totally vindicates Mark Green. It shows that this attack on Mark Green was based on politics and not based on the law."

To claim that McCain's statement somehow strips the matter of partisanship is simply astounding. Considering how advantageous it would be to McCain to have a sympathetic GOP governor in the swing state of Wisconsin when he runs for president in a couple of years, the Arizona senator's statement does nothing but infuse partisanship into the matter.

But putting all that aside, let's look more closely at the substance of McCain's comments.

McCain knows as well as anyone that laws don't always simply prohibit behavior, they can also expressly permit other behavior. In the case of the BCRA, moving money from a federal to a state campaign account was not one of the expressly approved uses of federal campaign funds.

For McCain to now claim that wasn't the intent of the bill is disingenuous at best. Unless, that is, McCain wants to argue that not expressly allowing federal funds to be used in that way, among the other allowances directly granted in the bill, was just an oversight.

McCain is right to claim that Congress returned to the matter in 2004. But he is misleading to make it seem like this return was an open and obvious fix of the BCRA.

To be sure, the tiny BCRA amendment in 2004 was tucked away in a 3,300-page appropriations bill. And, at the time, no one on Capitol Hill could (or would) say exactly who slipped that tiny provision into the enormous bill; come vote time, as seems to happen so often in legislative politics, it was just there.

Most federal politicians, however, weren't too disappointed about the change, particularly those who had plans to seek state office in the not-too-distant future, including Mark Green. According to Spivak and Bice, Mark Graul -- then Green's chief of staff, now Green's campaign manager -- told them: "[The provision] shows the many advantages that Mark will have if he chooses to run for governor. This is just one."

But not everyone was happy about the provision. As one GOP insider from Wisconsin (a Walker supporter, perhaps?) told Spivak and Bice at the time: "Merry Christmas. How nice - while they're out there running up the debt, they find time to help themselves."

And that's not all.

Looking at the actual wording of the BCRA amendment from 2004 doesn't get Green off the hook, as the use of McCain's statement by the RPW makes it seem like it does.

That amendment added these two acceptable usages of federal campaign funds:
  1. "for donations to State and local candidates subject to the provisions of State law"
  2. "for any other lawful purpose unless prohibited by subsection (b) of this section"
Green is claiming that it's the second usage that opens the door for him to make a full-fledged transfer of funds from his federal campaign account to his state campaign account based on the argument that a fund "transfer" is separate from a "donation" and therefore covered by the "any other lawful purpose" line.

But Judge Niess soundly rejected this reading of the BCRA amendment (emphasis mine): "The problem with this argument is that subsection (6), both by its own terms and by basic rules of statutory construction, does not apply if the transfer of funds is governed by subsection (5). '[A]ny other lawful purpose' in subsection (6) means any lawful purpose other than those already addressed in the statute."

Since moving funds from a federal campaign fund to a state campaign fund was already covered in the first usage detailed in the amendment, that's the usage that controls all such movements. In other words, the only way to get funds from a federal account to a state account is a donation of those funds that's "subject to the provisions of State law."

Indeed, if Congress wanted to allow fund "transfers" as something separate from "donations," why didn't it expressly state that in the BCRA amendment?

Or are we supposed to conveniently believe, two years later, that was just an oversight, too?

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