Replies

McCain spokesman Brian Rogers responded that "Howard Dean's hypocrisy is breathtaking given that in 2003 he withdrew from the matching funds system in exactly the same way that John McCain is doing today."

Well, almost exactly. Well, maybe not almost exactly ... but it's a great sound bite.

FEC Approves Matching Funds for 2004 Presidential Candidates (December 30, 2003) "... Howard Dean initially qualified to receive matching funds, but his campaign withdrew its request for funds."

FEC Approves Matching Funds for 2008 Candidates (December 20, 2007) "... The following chart lists the amount certified to each candidate. ... John McCain $ 5,812,197.35"

Federal Election Commission - Volume 30, Number 2 (Feb 2004)

    Dean Requests Withdrawal
    of Certification for Matching
    Funds

    On December 18, 2003, the
    Commission withdrew its certifica-
    tion that Presidential candidate
    Howard Dean and his authorized
    committee, Dean for America (the
    Committee), were eligible to receive
    public matching payments.  The
    action came after Dr. Dean informed
    the Commission that he "no longer
    wish[es] to participate in the Match-
    ing Payment system administered by
    the Commission" and "withdraw[s]
    the candidate agreement filed with
    the Commission pursuant to 11
    C.F.R. § 9033.1 and 2."  Since the
    Committee will not be receiving
    federal matching funds, the Com-
    mission will not conduct a manda-
    tory audit of the Committee
    pursuant to 26 U.S.C. §9038(a).
   
                         --Amy Kort

Dean's letter request (the "I withdraw" letter) was sent to the FEC in early November, 2003. Dean had announced, in August 2003, an intention to keep the "opt out" option open.

Gephardt, whose November 4, 2003 "opt out" questions to the FEC prompted the Advisory Opinion that McCain relied/relies on, didn't opt out, and did take public money.

Here's another successful "opt out," the other being Dean's opt-out in 2003. Dole's also occurred BEFORE the FEC issued it's December "authorized certification of funds," days before the start of the election year.

I wonder if McCain's timing, sending an "opt out" letter a month into the election year, and AFTER the FEC had certified funds, is unprecedented. Even it it is, that doesn't mean he should lose the ability or right to "opt out," but his situation is distinguishable from past opt-outs.

McCain's lawyer, Trevor Potter, said Wednesday evening that McCain has withdrawn from the system and that the FEC can't stop him. Potter, who was FEC chairman in 1994, said the campaign did not encumber the public funds in any way.
"Well, it was done before in another campaign. ... We think it's perfectly legal. One of our advisers is a former chairman of the FEC, and we are confident that it was an appropriate thing to do," McCain told a news conference Thursday.

So says the decider. Go get 'em Tiger.

Federal Election Commission - Volume 26, Number 2 (Feb 2000)

    Dole Requests Withdrawal of
    Certification for Matching
    Funds
   
       On December 22, 1999, the
    Commission withdrew its certifica-
    tion that Republican candidate
    Elizabeth Dole and the Elizabeth
    Dole for President Exploratory
    Committee (the Committee) were
    eligible to receive public matching
    payments. The action came after
    the Committee withdrew its request
    for the funds. Accordingly, the
    Treasury Department will not
    provide any public funds to the Dole
    campaign, and the FEC will not
    conduct a mandatory audit of the
    Committee pursuant to 26 U.S.C.
    §9038(a). (Section 9038(a) of Title
    26 requires the agency to audit any
    Presidential committee that accepts
    public matching funds.)

      On July 30, 1999, the FEC had
    determined that the Committee had
    satisfied the eligibility requirements
    of 26 U.S.C. §9033 to receive
    Presidential primary matching
    funds. Mrs. Dole withdrew from the
    Presidential race on October 20,
    1999.