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POLITICO reported earlier today that the DNC will file a complaint to the FEC regarding John McCain’s campaign spending.

Quoting the DNC committee, Jonathan Martin reported,

“According to McCain’s latest campaign filing, he has already spent $49.6 million and given that a month has passed, he has exceeded or is about to exceed the approximately $56.8 million spending limit [in the primary],” the committee said in a press released issued in conjunction with an afternoon conference call by Howard Dean intended to draw attention to the matter.

Evidently, John McCain is attempting to free himself from public financing restrictions by withdrawing from the public campaign finance system. The DNC rejects this option, calling attention to fund-matching obligations and ballot access legalities. By committing to public funds last year under McCain-Feingold, it seems McCain has gotten himself into a “quagmire of his own design.”

Former FEC chair Brad Smith published a deliciously loquacious article on the topic of Matching Funds, and had this to say of John McCain’s finance obligations. I wont make you read the whole thing:

MCCAIN COMMITS

John McCain was one of these candidates who announced that he would not take the money. Then McCain’s campaign hit its early summer implosion. McCain’s fundraising was flat, his campaign broke. Many thought McCain would pack it in. But McCain cut his staff, focused almost all his resources on New Hampshire, and applied for the matching funds, to “keep the option open.” In fact, on August 20 of last year he became the first candidate the FEC approved for matching funds for the 2008 campaign.

Smith claims later in the article that a simple approval for matching funds alone does not “lock” one into the public system. It’s more complicated than that. In fact, a blessed mixture of adroit lawyering and vague semantics will probably put McCain in the free. At least that’s what Smith and other policy experts think. Smith quotes Mark Scarberry, a professor at Pepperdine Law School. Scarberry said:

If I were a lender, and a candidate who could not repay the loan refused to access funds that were available to repay the loan, I would think that the candidate was acting very, very unreasonably, and perhaps in bad faith. A commitment to access such funds if needed would seem almost to be implied, if we assume the candidate honestly wants to repay the loan. And isn’t it the case that every unsuccessful candidate who qualifies for public funds, and who has not yet exceeded spending limits, ends up asking for them, at least if they are needed to repay loans?

This leads me to conclude that McCain’s promise (if he made one), should not prevent McCain from withdrawing his application for public funds. He did not use the opportunity to obtain public funds to convince the lenders to provide the loans to any greater degree than he could have had he not applied for the funds.

Although the opportunity to obtain public funds may have been used to “secure” the loans (in the sense of “obtain” the loans), the loans were not “secured” by the right to the public funds (in the sense of the right being collateral for the loans). The lenders would not be entitled to be repaid from the public funds ahead of any other creditors of McCain (or of whatever related entity obtained the loans).

The real problem has to do with Ohio ballot access law. According to Ohio law, you have to do one of two things to get on the ballot: get a load of signatures all over the state at significant financial and temporal cost (e.g., Romney, Thompson, Huckabee, Rudy) ... or present FEC matching funds to the Secretary of State. Apparently McCain chose the latter, and this presents a bit of a problem. But does this mean McCain is bound by FEC rules? Even Smith admits being flummoxed. I don’t have a clue, but I think the humble Straight-Talk express is in for a bit of a detour.