The Commission on the 21st, this Thursday, has set itself the task of deciding whether John McCain can withdraw from the matching fund program.  Its counsel has concluded that this withdrawal must be voted, four votes being required to let McCain off. Assume that the Commission cannot muster those four votes: what would be this mean?  Considering this question gives reason to wonder about the wisdom of the presentation and scheduling of this issue as it now sits on the agenda.

   No agency would wish to shout into the dead air, casting votes having no practical effect whatsoever.  This is the position in which the Commission may unhappily find itself.  McCain has announced that he has withdrawn from the system, and he long ago gave up any pretence of complying with the law that candidates in the system must obey.

   Gone for good: and so this question of withdrawal on which the Commission proposes to pronounce is eerily beside the point.  If the Commission were to vote that he could not withdraw, it would do so three weeks before the Republican convention, and it is not clear what the FEC could really do about it.

   That he has in fact withdrawn is the wrong statement of the problem his conduct has presented for the agency at this time. At issue is whether he broke the law.  The Commission cannot resolve this in a public meeting; it has a complaint before it, filed by the DNC, and its efforts should be invested in an investigation and a determination of liability that would bring in its wake the expectation of a sizeable civil penalty.  

   By organizing and scheduling the decision in this way, at this time, the FEC is prejudging without an investigation the merits of the DNC claim.  It is doing so for no reason other than the wish to achieve a chimerical closure to the controversy opened up by the McCain letters of "withdrawal" and the critical response to them from David Mason, the Commission Chair, who lost his job for raising the issue. 

   This was always an embarrassment for McCain, and by having the Commission endorse his withdrawal, McCain can put this unpleasant history largely behind him.  Or he and his party can, with Mason safely out of the way.

   The only hitch is the counsel's conclusion that an affirmative vote is required. But if the four votes do not materialize: what does this failure to endorse the "four vote" requirement mean?

   It would mean that things remain as they are, but who knows what it means that they should remain that way?  Does it mean that it was legal for McCain to withdraw, as the General Counsel Office states, but that it is not a fully executed withdrawal--hence, not really legal--until the Commission so votes?  Or that the Commission simply cannot agree on what is required of the agency to execute a withdrawal but that this is an unresolved procedural problem for the agency and that McCain is free, in the meantime, to go? 

   This was a mess from the beginning, and it remains a mess, made messier by the FEC's choice to slap together a vote on an action, by McCain, that it can no long affect.  And in making this choice, the FEC complicates the prospects for the one step possible, which is to have a full and complete investigation and review of the McCain campaign's conduct and to enforce the law, as it would be enforced in all other circumstances, if violations are found to have occurred. 

   The uselessness of the vote that agency will take Thursday will be useful only to McCain; it might seemingly validate his withdrawal in disregard of the enforcement process, and with the effect of relieving the McCain campaign and the candidate of all the responsibility for violations of the law.

Bob Bauer