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Professor Dan Tokaji
Election reform, the Voting Rights Act, the Help America Vote Act, and related topics -- with special attention to the voting rights of people of color, non-English proficient citizens, and people with disabilities

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Friday, June 20
Did Obama Break His Promise?
There's been a great deal of criticism of Senator Barack Obama's announcement yesterday that he would opt out of the public financing system for the general election, some of it summarized here on Rick Hasen's blog. Some argue that Obama went back on his word by electing not to accept public financing, and the restrictions on private contributions, that come with it. Less attention has been devoted to what Obama actually said in response to a questionnaire in which this commitment is said to have been made.

First a disclosure and a disclaimer: I helped draft some of the questions in the Midwest Democracy Network's questionnaire that provoked this controversy, though not the ones having to do with public financing. Election Law @ Moritz received funding from the Joyce Foundation, which also supports the Midwest Democracy Network, for our From Registration to Recounts report last year. That said, the views expressed here are solely my own, not those of the Midwest Democracy Network or any of its constituent organizations, and I don't claim any special authority to interpret Obama's response by virtue of my work on other parts of the questionnaire.

The Midwest Democracy Network questionnaire was sent to all the presidential candidates from both major parties in the fall of 2007, but only Obama and John Edwards chose to respond. After the possibility of Senator Obama refusing to accept public financing first became an issue in February 2008, the Midwest Democracy Network again contacted the other candidates -- including Senator John McCain -- and urged them to respond. None did.

The question on presidential public financing asked: "If you are nominated for President in 2008 and your major opponents agree to forgo private funding in the general election campaign, will you participate in the presidential public financing system?" Here's Obama's full response:
Yes. I have been a long-time advocate for public financing of campaigns combined with free television and radio time as a way to reduce the influence of moneyed special interests. I introduced public financing legislation in the Illinois State Senate, and am the only 2008 candidate to have sponsored Senator Russ Feingold's (D-WI) bill to reform the presidential public financing system. In February 2007, I proposed a novel way to preserve the strength of the public financing system in the 2008 election. My plan requires both major party candidates to agree on a fundraising truce, return excess money from donors, and stay within the public financing system for the general election. My proposal followed announcements by some presidential candidates that they would forgo public financing so they could raise unlimited funds in the general election. The Federal Election Commission ruled the proposal legal, and Senator John McCain (R-AZ) has already pledged to accept this fundraising pledge. If I am the Democratic nominee, I will aggressively pursue an agreement with the Republican nominee to preserve a publicly financed general election. (Emphasis added.)
Obama did answer the question with a "Yes," but proceeded to provide what can be understood as a qualification. The "novel" proposal of February 2007 to which Obama refers is presumably the one set forth in this letter from Obama's lawyers to the Federal Election Commission. That letter asked the FEC for an opinion on whether Obama could raise funds for the general election, while leaving the door open to accepting public financing in the general election: "Senator [Obama] would not, if the law allows, rule out the possibility of a publicly funded campaign if both major parties' nominees decide, or even agree on this course. Should both major party nominees elect to receive public funding, this would preserve the public financing system, now in danger of collapse, and facilitate the conduct of campaigns freed from any dependence on private fundraising."

The FEC concluded that Obama could solicit and receive funds for the general election without losing eligibility for public funding, so long as he complied with certain conditions. But of course, the February 2007 letter from Obama's lawyer didn't commit him to accepting public financing. It was, if anything, his response to the Midwest Democracy Network's questionnaire that did so.

Whether Obama broke his promise depends on what was meant by the italicized statement in the above block quote, specifically by the statement that he would "aggressively pursue an agreement with the Republican nominee to preserve a publicly financed general election." Did he simply mean that he would accept public financing and the limits that come with it if the Republican nominee did so (as McCain has now done)? Or was some further agreement contemplated? Obama's questionnaire response is susceptible to either interpretation.

Later on, in this USA Today op-ed, Obama adopted the latter approach, saying that he wanted a "meaningful agreement" in which the candidates would "commit to discouraging cheating by their supporters; to refusing fundraising help to outside groups; and to limiting their own parties to legal forms of involvement." The key point here is the refusal of help from "outside groups," which presumably includes 527 organizations like Swiftboat Veterans and POWs for Truth and the Moveon.org Voter Fund. Candidates can't prevent campaign-related speech by such groups, but they can discourage it and encourage their supporters not to fund such speech.

Obama's questionnaire response can plausibly be read to make his agreement to public financing contingent upon the candidates reaching some sort of agreement along these lines. The McCain campaign might argue that, if this is really what Obama meant, he should have been clearer in his response to the Midwest Democracy Network questionnaire. But given that McCain failed to respond at all to that questionnaire -- even after being given a second opportunity to do so in February 2008, after this story originally made news -- he's in a poor position to complain. We should, after all, encourage candidates to respond to questionnaires like this one. It seems only fair to give those who do respond the benefit of the doubt, particularly when his or her opponent failed to do so.

If Obama's response is understood in this more generous light, the next question is whether he did in fact "aggressively pursue an agreement" with McCain. On this question, there's a factual dispute. Obama's lawyer Bob Bauer maintains that he discussed this issue for approximately 45 minutes with McCain's lawyer Trevor Potter, on June 6. According to Bauer, "it became clear to me, and I reported to the campaign, that there really wasn't a basis for further discussion," given the McCain campaign's unwillingness to rein in 527 spending. Potter has a different recollection, denying that their was any negotiation. What is clear is that, a few days after their meeting, McCain said that he "can't be a referee" for 527 attacks on his opponent, thus giving Obama an opening to opt out.

So did Obama fail to keep his word? It depends on what one thinks his words on the questionnaire meant, as well as on what words were exchanged between the candidates' lawyers. One might criticize Obama for failing to "aggressively" pursue an agreement with McCain. One might also point to Obama's statement during one of the debates with Senator Clinton, that he would "sit down with John McCain and make sure that we have a system that works for everybody." It's apparently undisputed that Obama and McCain didn't personally sit down to discuss the issue, though their lawyers did. But if one believes Bauer's account, it seems clear that such efforts would have been futile, particularly in light of McCain's later statement on 527 spending.

Finally, one might complain that this is all a very lawyerly, a point I cheerfully concede, and to which I would reply: A lawyerly question deserves a lawyerly answer.

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Moritz College of Law The Ohio State University