Leaving aside the question of bias, this defense shouldn’t get McCain off the hook because it relies on the faulty conception of what lobbyists do. In reality, lobbyists almost never persuade (or even try to persuade) lawmakers to change a position outright. Instead, they are hired chiefly to influence the small details of pending deals and to get things moving again when a client’s deal has stalled. From the standpoint of the client, then, the McCain-Iseman relationship was not a failure, as McCain implies, but a clear success: Iseman’s job was to get the Paxson deal moving again by bringing about a vote on his cable licenses, which she did with McCain’s eager assistance.
Here’s the potential trouble for McCain: intervening with the FCC to force a vote on a lobbyist’s behalf is a lot like a self-dealing lawmaker earmarking money on a lobbyist’s behalf. In fact, what McCain admits to doing on Iseman’s behalf can be thought of as the regulatory equivalent of an earmark.
Here’s why. Every year the FCC gets about 3,000 letters, many from people in a bind similar to Bud Paxson’s, and many of them generated by lobbyists. An FCC friend says his colleagues are so experienced at dealing with this mail flow that they joke about whether a given piece of mail is a $10,000 letter, a $20,000 letter, and so on.
Most of the letters the FCC receives are not acted on. McCain’s letters were. So the first thing that should stand out about the Paxson case is not the FCC’s eventual ruling but the fact that McCain sent six letters and wrote to each of the commissioners individually (this is unusual) demanding immediate action.
The second thing that was unusual was the legal situation. Paxson was asking the FCC to allow an educational license to be purchased by a commercial interest. The FCC had never allowed such a deal.
The third thing that should stand out is the unusual breakdown of how the FCC voted. Susan Ness, a Democratic commissioner, took the rare step of breaking with her fellow Democrats and voting with the Republican commissioners to approve the Paxson deal.
There is a colorful FCC expression for such an unusual decision: it’s called a “Purple Cow.” If an FCCer says “Let’s Purple Cow this,” what he means is “Let’s a make a rule that only applies to this particular case.”
Within the FCC, the decision, and Ness’s vote in particular, is widely considered to have been a Purple Cow. And while there is no evidence that McCain or anyone on his staff made an explicit quid pro quo demand, Ness’s vote is widely thought to have been a bid to win her reappointment to the FCC—a bid that happened to have stalled before McCain’s committee months earlier.
The point is not that what McCain did in the Paxson case was scandalous or illegal. But he clearly intervened in the regulatory process by using the full weight of his political capital to take something that had been stuck at the bottom of the pile and move it to the top. In the same way, politicians use earmarks to ensure that whatever bridge, road, study or other projects they favor get special treatment. At a fundamental philosophical level, McCain’s regulatory earmark does not differ meaningfully from the earmarking he has spent a career railing against. The Times did not sufficiently nail the sex angle to make it an issue in the presidential race. But in the long run, piercing McCain’s image as a principled reformer could wind up being more damaging.