One of the guys I look to when there’s a campaign finance controversy is Brad Smith, former FEC commissioner, and one of the most tireless fighters for the idea that the government should not be telling you how much money you can spend on promoting your views.

Here are the nut graphs of Smith’s take, but the whole thing is worth reading:

Regardless of all the legal maneuvering, the bottom line is that Senator McCain is going to blow through the spending limits and take his chances with the FEC down the road. To do otherwise would be to limit himself to less than $5 million in spending between now and September, which would be electoral suicide. The spending caps killed Bob Dole in 1996, and Dole at least was able to have his campaign supported by the Republican Party in the interim. However, because of the McCain-Feingold (oh what wonderful twists there are to this plot) the Republican Party cannot do for McCain what it did for Dole – support his campaign with soft-money funded issue ads. No, the only option for McCain is to spend, and let the legal chips fall where they may.
The major penalty for violating the spending cap after agreeing to take the public subsidy is that you have to repay the government money. This is a big deal if you’ve already spent it, but in McCain’s case, he hasn’t spent any government money. Beyond that, the penalties include up to a $25,000 fine and five years in jail for a knowing and willful violation. No one thinks for a moment that John McCain will or should go to jail for this. Even the signers of the loan – McCain campaign manager Rick Davis and fundraiser Carla Eudy – aren’t really in danger of seeing a prison cell. And a $25,000 fine? Chicken feed.
But McCain cannot just blow off the FEC. While the FEC may lack a quorum now, some day, presumably, it may again have one. At that point, it will be able to vote to issue subpoenas to obtain copies of McCain’s loan documents, internal bank memoranda, McCain campaign memoranda and more. It may take the depositions of the Eudy, Davis, ubiquitous McCain aide Mark Salter, and anyone else who might have evidence – even Senator McCain. It won’t be pretty. So this may be much more a PR problem than anything else for the McCain campaign. That McCain has made his reputation as a “reformer” makes it all the more a PR problem. But it’s a risk that simply has to be run. There is no other choice.

You know, he would never do it, but this would be a nice time for John McCain to suddenly see the flaws and problems of McCain-Feingold, and to become an advocate for more rapid disclosure, and loosening of contribution limits and other obscure, complicated regulations…