MUR #5799

RESPONDENT: McCain, John

COMPLAINANTS: The Senate Majority Project; Setzer, Christine

SUBJECT: Non-federal; Solicitation

DISPOSITION: The Commission failed by a vote of 3-3 to: a) Find probable cause to believe that Senator John McCain violated 2 U.S.C. § 441i(e)(1)(B) and 11 CFR § 300.62. b) Approve the conciliation agreement, as recommended in General Counsel?s Report #2 dated December 11, 2007. c) Approve the appropriate letter.
The Commission decided by a vote of 4-2 to dismiss MURs 5712 and 5799 on the basis of prosecutorial discretion as outlined in Heckler v. Chaney, 470 U.S. 821 (1985).
The Commission decided by a vote of 6-0 to close the files in MURs 5712 and 5799 and send the appropriate letters.
The Commission decided by a vote of 4-1 to take the following actions in MUR 5799: 1. Find reason to believe that Senator John McCain violated 2 U.S.C. § 441i(e) and 11 CFR § 300.62. 2. Enter into pre-probable cause conciliation with Senator McCain and approve the Conciliation Agreement, as recommended in the General Counsel?s Report dated April 3, 2007. 3. Approve the Factual and Legal Analysis, as recommended in the General Counsel?s Report dated April 3, 2007; subject to the following revisions: Replace the text which begins at Attachment 5, Page 7, Line 11, after the ?See id.? citation, and concludes at Attachment 5, Page 8, at the end of Line 7, with the following language: ?In addition, although the solicitation sought specific amounts only up to $1,000, it also included an ?other? space, constituting a failure to limit the solicitation to federally-permissible amounts. While the solicitation also included a disclaimer indicating that ?Senator McCain is not soliciting individual contributions in excess of $2,100, nor is he soliciting corporate, labor union or foreign national contributions,? this disclaimer failed to limit the entire solicitation to Federally-permissible funds. See supra, pp. 3-7. Furthermore, the next sentence advised solicitees that ?South Carolina state law allows campaign contributions of up to $3,500 per election cycle,? implying that contributors could exceed the Federal contribution limit. A Federal officeholder may not inoculate a solicitation of non-Federal funds by ?reciting a rote limitation, but then encouraging the potential donor to disregard the limitation.? See AO 2003-03. It therefore violated BCRA?s prohibitions on soliciting non-Federal funds for Senator McCain?s name or likeness to appear in this invitation as a featured guest or speaker since he approved, authorized, agreed, or consented to be featured, or named in, the invitation. See supra, p. 2.? 4.Approve the appropriate letter.