anticipates that Mr. McGavick will spend a sginificant amount of person funds to fun public communications attacking Senator Cantwell...[and] that Mr. McGavick's expenditures for communications attacking Senator Cantwell will be made prior to the September 19 primary, in an effort to prevent Senator Cantwell from gainin eligibility to the increased contribution limits available under the Millionaire's Amendment.Cantwell then asks the FEC whether or not McGavick's expenditures from personal funds before the primary attacking Cantwell will qualify him as an opponent and also whether or not McGavick's personal contributions, when and if he transfers them to the general election, would count toward the rules for triggering the Millionaire's Amendment.
The FEC is prepared to say No the first question and yes to the second. The heart of the reasoning for denying Cantwell's ability to raise additonal funds under the Millionaire's Amendment now is that McGavick is not her opponent now, prior to the September 19 primary.
These provisions of the Millionaires' Amendment are triggered by expenditures from person funds made by an "opposing candidate." See 2 U.S.C. 441a(i)(1)(C) and (D); see also 68 Fed. Reg. at 3976. Although the Act does not define the phrase "opposing candidate," Commission regulations define "opposing candidate" separately for primary election cycles and general election cycles, consistent with the Act's application of the Millionaires' Amendment separately to each election cycle. (footnote omitted).This is of course the proper ruling.
But there is some extreme hypocrisy in this particular case. Cantwell is a freshman Senator facing her first re-election. In order to get elected in 2000 she defeated incumbent Slade Gorton, in which she spent freely of her own money to get elected, all prior to the passage of the Millionaire's Amendment. According to Cantwell's disclosure report at the end of the 2000 Election Cantwell contributed or loaned her campaign over $11 million, $6.525 million in direct contributions and $3.37 million in loans.
Now, Cantwell, who is still quite wealthy personally, is like most candidates, in that she compiled an impressive bank roll during her term in the Senate. According to her most recent campaign finance report, in July of this year, Cantwell had $8.43 million dollars cash on hand available. Her pre-primary report will be due September 7 and I would expect a healthy fundraising report as well. Interestingly, Cantwell has loaned her campaign no money at all in this election, although she has loaned the campaign some $5.4 million.
The fact that Cantwell is seeking to take advantage of the current law is not surprising and that fact that such an approach is hypocritical is also not surprising. Incumbents have a great ability to raise funds while in office, an option not available to most challengers like McGavick. While the hypocrisy is troublesome and irritating, it is not illegal.
I have long thought the Millionaires' Amendment to be largely unconstitutional, since it carries a two real equal protection problem in that canddiates in the same election are treated different for limits purposes. Additionally, the current law treats personal wealth and political wealth (that is the ability to raise large sums of money) differently--all in an attempt to be fair.
But if the foundation of campaign finance regulation is to prevent corruption or the appearance of corruption, I am not sure how the Millionaires' Amendment makes that happen. If a limit of $2,100 is needed to prevent corruption in regular cases, how do you reconcile the fact that under the Millionaires' Amendment, the limit can increase to $12,600 in some cases, and that is not corrupting?
Brad Smith has similar comments here.
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