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Awkward remarks are not the problem at the Federal Election Commission. The problem there, according to a lawsuit, is absolute silence. Most of the slots in the commission are not filled. So in the midst of the biggest fundraising season in history, the FEC does not enough commissioners to act on anything.

That's why the Democratic National Committee has sued. It claims the FEC failed in its obligation to investigate Republican John McCain. NPR's Peter Overby has more.

PETER OVERBY: The Democrats' lawsuit has a couple of angles to it. One is legal and technical, and we'll get to it in a minute. The other is political. The Democrats want to generate stories like this one: They want to remind voters of questions about McCain's campaign finance troubles while Hillary Clinton and Barack Obama go on wrangling over the Democratic nomination.

Tony Corrado is a political scientist of Colby College and a specialist in campaign finance law.

Mr. TONY CORRADO (Political Scientist, Colby College): I think that this lawsuit is in large part designed to try to keep this issue before the public. The Democrats are trying to keep the pressure on John McCain because they want to keep making the case that he has somehow violated the law.

OVERBY: So here's the legal part of the case: Democrats say McCain has violated campaign finance law, and he's getting away with it because the enforcement agency, the Federal Election Commission, hasn't been able to function. The FEC needs four commissioners to decide anything and it only has two, thanks to a stand-off between Senate Democrats and the White House over confirmation of thee three nominees.

McCain's lawyers say his alleged violation is no violation at all. Here's what happened: When McCain's campaign was about to go broke over the winter, he got a line of credit from a bank. He had already applied for public financing but when his fundraising got better, McCain declared that he was withdrawing from the public financing program.

The DNC lawsuit says he can't do that because he had already made financial use of his access to public funds. The Democrats point out that McCain's campaign manager guaranteed to the bank that McCain could qualify for public money in the future.

Joseph Sandler is the DNC's general counsel.

Mr. JOSEPH SANDLER (General Counsel, Democratic National Committee): We think any fair and objective look at the facts would show that no bank at arm's length would make a loan to the McCain campaign in the situation it was in unless they knew that if push came to shove, they could rely on getting the taxpayer money to help repay the loan.

OVERBY: The kicker here is that if McCain is still in the public financing program, he has not received a dime yet from the program, but at the same time, he has broken the spending cap that goes along with the public money. Again, Joseph Sandler.

Mr. SANDLER: It's the first time that a presidential candidate is violating the law, arguably every day, by breaking the spending limit. The agency charged with enforcing the law is unable to do anything about it.

OVERBY: But this is not the first time the Democrats have taken notice of this situation. The DNC filed a complaint about it in February. Under federal election law, it can sue the commission for failing to act. The new lawsuit argues that having no functioning commission is the legal equivalent.

The Republican National Committee called the suit total nonsense, something concocted by trial-lawyer Democrats. Meanwhile, as if to emphasize the plight of the FEC, former chairman Robert Lenhard has asked that the White House withdraw his name from nomination for one of those empty seats on the commission. While he was waiting to be confirmed, he was hired by one of Washington's top law firms.

Corrado, the political scientist, says that's a bad sign for the commission.

Mr. CORRADO: Not only do we have a dysfunctional FEC at this point, but it is going to be increasingly difficult to find individuals who are going to be willing to serve on the commission.

OVERBY: Consider that Lenhard, a Democrat, had already served two years as a recess appointee without Senate approval. His nomination and two others have been pending in the Senate since December 2005.

FEC watchers say that if the stalemate isn't broken before the Senate's July recess, the commission will be out of business for the rest of this election year. Peter Overby, NPR News, Washington.

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