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Are There Grounds for an Ethics Complaint Against McCain?

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 I?

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?

[IMGCAP(1)]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.

C. Simon Davidson is a partner with the law firm McGuireWoods LLP. Click here to submit questions. Readers should not treat his column as legal advice. Questions do not create an attorney-client relationship.

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