NOTE:  In keeping with the disclosure policies of the site:  the matter below is one on which the firm associated with this site, and the undersigned,  are professionally involved as counsel to Obama for America. 

     In an editorial entitled "Lapsed Principle," the Washington Post has concluded, as has John McCain, that Barack Obama should enlist in the public funding program for the general election and campaign on the tax check-off dollar.  No more the small Internet donations; no more the large harvest of individual contributions generated off the promise of his candidacy.  Obama would help "save" the public funding by substituting tax check-off dollars for money put up by his supporters

     Senator Obama’s position, missing from the editorial, remains the same:  he will decide the issue when he becomes the nominee, and no earlier.  That he has the choice at all is entirely his own doing.  He obtained an Advisory Opinion from the FEC that authorizes him, having contingently raised private general election money, to return it to the donors and apply instead for the public grant.

     This is not enough for the Post, which concludes that Obama has only one choice open to him, to accept public money, and that the alternative would be a "lapse" in principle.

     Consider what makes up the Post case:

The "Pledge"

     It is more than a bit of editorial license to say that Obama "pledged" that, come what may and without the least consideration of the circumstances, he would accept public funding if the Republican nominee did the same.  No such commitment appears in the request for the Opinion, made to the FEC.  There, campaign said this:  "The Senator would not, if the law allows, rule out the possibility of a publicly funded campaign if both major parties’ nominees eventually decide, or even agree, on this course."  AOR 2007-03. 

     Having the candidates in a position to accept public funding, should they "eventually decide, or even agree" to do so, was the object of the Opinion, and no more.  The FEC seemed to understand this, confirming in its Opinion that "Senator Obama has represented that he will consider opting to receive public funds for his general election campaign if the Republican candidate agrees, or independently decides, to receive public funds."  

     It is not easy to do what the Post has done, which is to convert a financing option into something like a moral imperative, when Senator Obama’s purpose, put clearly to the FEC, was to avoid having to "rule out the possibility" of accepting public funding.  The Post cites to an Obama campaign statement that this agreement with a Republican would be "aggressively pursued," and it asks:  where is the aggressive pursuit?

    Surely the answer is obvious:  Senator Obama is not yet the nominee and the pursuit of a public financing option, aggressive or otherwise, is hardly timely.  He has, however, specifically outlined the framework for a "meaningful agreement in good faith" that takes into account the related spending and spending practices on each side, including protections against cheating, the candidates’ agreement to refuse fundraising help to outside groups and to limit their own parties to legal activities, and attention to John McCain’s spending for the general election while the Democratic primary continues.  There is precedent for such an agreement, in the Weld-Kerry agreement in the 1996 Massachusetts Senate contest.

The "Stakes"

     Now putting aside the question of the phantom "pledge," consider further what the Post believes to be at stake in the Senator’s decision on public funding.

     First,  it believes that the public funding system, in poor shape, would be "salvaged" by an Obama decision to participate in it.

     Second, it imagines that Obama would display high principle by agreeing to participate on one condition and one condition only—that John McCain would do the same. 

Salvaging the Public Funding System.

     The first question can be dispatched with little effort, since the Post itself does much of the work, conceding that the problems of the public financing system are not of Obama’s making and will not be solved by his enrollment in the program.  "Even if Mr. Obama were to take public financing, the system would still be in dire need of an overhaul before 2012."  There you have it: Senator Obama could not just "save" the system by  his participation. 

     So the next question is whether there are broad public policy benefits to be gained—or dangers to be averted—by Obama’s acceptance of a public grant for the general election.  Here, too, the Post equivocates.  For, as the Post states, "the advent of Internet fundraising has called into question part of the rationale underlying public financing, sparing candidates fundraising demands and reducing the role and influence of large donors.  The Post even agrees that, as Senator Obama has said, his fundraising success on the Internet represents (in the Post’s words) "a parallel financing system that avoids many of the ills that public financing was supposed to address."

     The most that the Post can say is that the Obama campaign enjoys fundraising support from 79 bundlers who have helped to provide a "good chunk" of his campaign funds. 

     "Good chunk"? 

     Rick Hasen, referring to the Post reporting on which the Post editorial relies, notes that:  "Even if you add up all the bundlers' bundling described in this article, it comes to only $16 million of the $179 million Sen. Obama has raised so far."  As Hasen has added it all up, the bundling contribution to the Obama fundraising record comes to 9 percent.

     9 (nine) per cent, described as a "good chunk"?  Be on guard against any Post editorialist who offers to pick up a "big chunk" of a lunch tab.

     In sum:  by the Post’s account, Senator Obama would save a system, except that it will remain in "dire need" of reform whether he enters into it or not.  And the Post further concedes that if he does not enter into it—if he continues to finance his campaign with small donations made through the Internet—he will be able to finance his campaign in a fashion fully consistent with the goals of a public financing system.

      But the final choice of private or public financing lies ahead, as Senator Obama has said.  It does matter whether we are clear, as the Post is not, about what this choice entails.

If John McCain Agrees….

     The Post also seems to believe that the choice for Mr. Obama has been clarified, leaving little doubt about the proper course, because John McCain is a ready and willing partner.  

     For McCain’s name to be invoked in this discussion, on the subject of what means to keep one’s word, is an inspired bit of comic patter.

    McCain is, of course, now on the run from the Federal Election Commission, having obtained the benefit of the primary matching fund system, only to violate his Agreement with the Government in direct disregard of a warning from the agency’s Chairman.  McCain entered into the Agreement to comply with all the conditions for primary support; he happily took the certification the FEC issues to qualifying candidates; he used this certification as collateral for a desperately needed bank loan; and he then unilaterally announced that he would "withdraw" from the Agreement and accept private money after all.

     McCain’s has fairly definitively forfeited any authority he presumed to have to counsel Obama or anyone else on "keeping one’s word" in all matters related to public funding.

     Here is a candidate who has supported public finance when it suited him and rejected it when the political winds blew the other way.  See here.  As Congress considers how to fix the public funding system, McCain has conspicuously absented himself from those efforts. 

     Now McCain has decided that he could use, it would be nice for him to have, the public funds.  Not exactly now, of course:  only later, at the time of his own choosing.  With the Republican nominating contest over and the convention (and public money) coming only in August, McCain will have the functional equivalent of a privately funded general election campaign for the next  five months, using the "primary" money he is actively raising. 

     This is the candidate, John McCain, with whom Barack Obama will, when the time comes, explore a "meaningful agreement in good faith." 

Bob Bauer