With two of his rivals for the Democratic presidential nomination already rejecting public financing, Rep. Richard Gephardt (Mo.) has asked the Federal Election Commission to weigh in on whether a candidate may agree to participate in the system and later “opt out” without facing penalties.

“To the [Gephardt presidential] Committee’s knowledge, no one in the history of the matching system has ever agreed to the conditions for accepting public funds, only to reverse that decision for strategic advantage,” Gephardt campaign manager Steve Murphy wrote in a Nov. 5 letter to the FEC, making a pointed reference to frontrunner Howard Dean.

In July, Dean became the first Democratic candidate to be ruled eligible to receive primary matching funds, but the former Vermont governor recently reversed that decision.

Dean — who got the blessing of his supporters before he rejected public funding — argued he couldn’t muster the resources needed to challenge President Bush if he was bound by the spending caps that are part and parcel of the public financing program.

Last week, Sen. John Kerry (D-Mass.) followed suit and announced that he, too, would forgo matching funds, although Kerry never applied for the funds in the first place, as Dean had.

But Gephardt — who hopes to slow Dean down by winning the Iowa caucuses — went on the offensive earlier this month, in effect asking the FEC if Dean can legally opt out and, if he can, further asks if he can legally keep the contributions he’s raised thus far from donors who thought their donations would be matched with public monies.

Under the premise that Gephardt himself might have to consider opting out of the public financing system, Murphy laid out his questions to the FEC.

“Congressman Gephardt is a longtime supporter of the public financing system, and has so far in this cycle’s presidential campaign publicly committed to participation and solicited contributions on that basis,” Murphy wrote. “However, Governor Dean’s decision to drop out of the system requires reconsideration of this choice and its consequences.”

Noting that candidates who apply for federal matching funds sign an application agreeing to comply with certain conditions for public financing, Murphy asks whether an agreement is “revocable” and what consequences “would flow from revoking its decision, should it be lawful to do so.”

Election law experts said they don’t expect Gephardt’s inquiry to generate much of a problem for Dean and most agreed the letter was really just another way for Gephardt to beat up on his rival.

“The FEC won’t want to be in the position of enforcing campaign promises, i.e., if you contribute to my campaign now, I promise I’ll take public financing,” remarked one attorney. “The situation would be a lot different if Dean had already accepted federal funds, but so far all he has done is qualify for federal funding.”

Dean campaign spokesman Jay Carson dismissed the FEC advisory opinion request, telling the St. Louis Post-Dispatch that the letter was “totally absurd.”

Gephardt, meanwhile, is still awaiting final FEC approval of his primary matching funds. He filed his papers with the election watchdog agency on Nov. 4. Fellow Democrats Wesley Clark and Sen. John Edwards (D-N.C.) are also awaiting FEC approval of their applications for public financing, which were filed on Nov. 6 and Nov. 7, respectively.

The FEC last week approved Sen. Joe Lieberman’s (D-Conn.) application for matching funds. Perennial Democratic candidate Lyndon LaRouche was the second candidate after Dean to gain eligibility earlier this year.

Gephardt is not the only candidate attacking Dean for surrendering his matching funds.

At a campaign engagement last Friday at South Carolina’s Morris College, Edwards reiterated his intent to stick with the public financing system and accused Dean of hypocrisy.

“I think it’s unfortunate and inconsistent,” The Associated Press quoted Edwards as saying. “He said earlier in the year that he would stay within the system and now he’s reversed himself. I think that sends the wrong signal to voters.”