By J. Randolph Evans
From the news coverage, some viewers and readers might think that
networks and cable news had never covered a Presidential campaign. So
far, there has been little more than mass confusion about exactly how
Presidential campaigns work in the modern age of complicated federal
election laws. So, here is a basic tutorial for readers (and for those
in the news media interested in what is happening out there).
In the world of Presidential campaigns, there is one very important
line. It is between being a candidate and not being candidate. This
line is so important that entire groups of lawyers devote their careers
to making sure that they know exactly where that line is. The Newt
Gingrich folks have a very good one – Stefan Passantino of McKenna, Long
& Aldridge. Other potential campaigns have similar big time election
lawyers.
Once a person IS a candidate, there are lots of things that happen. The
most important thing is that a candidate must file paperwork within
fifteen (15) days with the Federal Election Commission (“FEC”). From then on, the paperwork gets progressively worse.
A person can become a candidate in any number of ways. The easiest way
for a person to become a candidate is to simply say “I am a candidate
for the President.” Heavily lawyered candidates do it this way; others
do it by accident because there are many other ways of becoming a
candidate.
For example, if a person spends more than $5,000 to promote their
election, then they are a candidate. Or, if a candidate takes action to
qualify to be on a ballot, then they are a candidate.
There are lots of reasons other than FEC paperwork why folks interested
in possibly running for President do not actually want to be a candidate
until they are ready to be a candidate. Mostly, they want to manage the
inevitable comparisons (by the media anxious for shorthand scorecards).
After all, United States Senators (who can use their Senate campaigns)
and millionaires (who can self-fund their campaigns) have enormous advantages. In addition, declared candidates face real consequences to
their businesses, professions, and finances.
As a result of all of this, announcement of a ‘candidacy’ is a very
paced, scripted, and legally vetted event. Hence, notice the complete
absence of a mad rush by any of the would-be Presidential contenders to
jump out and announce that they are a ‘candidate.’
Before that important decision, there CAN be an intermediate step. That
step is to ‘test the waters’. To quote the Federal Election Commission,
“[b]efore deciding to campaign for federal office, an individual may
first want to ‘test the waters’ – that is, explore the feasibility of becoming a candidate. The FEC describes this as follows: “For example, the individual may want to travel around the country to determine if there is sufficient support for his or her candidacy.”
Basically, a person can ‘test the waters’ but not be a candidate. The
FEC devotes whole pages like:
http://www.fec.gov/press/press2011/2012PresidentialExploratoryCommittees
nm.shtml or
http://www.fec.gov/press/press2011/presidential_form2nm.shtml.
There is nothing new or novel about this phase.
Some candidates in fact have an exploratory committee for this purpose.
Others just set up a bank account with a treasurer and start raising
money. Some do both.
Folks get confused about ‘exploratory committees’ since some candidates
use them to test the waters, and some candidates use them as a precursor
to a candidate committee. In reality, there really is no legal significance to an ‘exploratory committee.’ The real issue is about what can someone raise money for under the federal election rules, whether through a committee or not.
Candidates can raise money to get elected. Non-candidates (who follow
the rules) can raise money to ‘test the waters.’ Folks who are neither
candidates nor ‘testing the waters’ cannot raise money for those purposes.
For those who put their toe in the water, the rules are very strict. If
someone is ‘testing the waters’, they must keep track of their contributions and expenditures. In addition, the same rules apply to their ‘testing the waters’ contributions (like the limit of $2,500 per individual and no corporate contributions) as if they were a candidate.
The biggest difference is that ‘testing the waters’ potential candidates
do not have to report their contributions until they make the decision to be a candidate.
Once someone decides to run as a candidate, they have to report all of
their contributors, just as if they had been a candidate from day one of
testing the waters. In addition, contributions during this time period
count toward the most that they could give just as if they had been a
candidate from the first day of testing the waters.
It all sounds really complicated. But then, that is how lawyers make
their money. For everyone else, the FEC website (FEC.gov) is pretty
helpful.