WASHINGTON -- Amid a busy schedule of fundraisers and meet-and-greets with party leaders around the country, Wisconsin Gov. Scott Walker (R) stopped off at the Conservative Political Action Conference in February to tout his battles with liberals and unions. During his sleeves-rolled-up speech, Walker made sure to sneak in some legal gymnastics insisting that he was not yet a presidential candidate.
“Should we choose -- my lawyers love that, when I say we are 'exploring' a campaign -- should we choose to run for the highest office in the land,” Walker said.
And why do Walker’s lawyers likely wish he'd avoid even the "exploring" language? Federal campaign finance law has specific rules for people exploring a presidential campaign. These include strict limits on the amount of money the candidates can take from a single donor and restrictions on coordinating with supposedly independent groups like super PACs.
But even these rules are not rigorously enforced. And if you aren’t a candidate or "exploring" the possibility of being one, you are free to hire staff and raise unlimited sums for your very own super PAC.
In recent years, non-candidates have taken that freedom and essentially erased the distance between themselves and so-called independent groups that was envisioned by the Supreme Court’s Citizens United decision and, thus, eliminated any real limits on contributions to candidates -- which are the foundation of campaign finance regulation.
Not everyone agrees that a candidate can insist on the non-candidate designation while testing the presidential waters.
“That is a complete legal fiction,” said Trevor Potter, head of Caplin & Drysdale’s election law practice and lawyer to both Sen. John McCain (R-Ariz.) and comedian Stephen Colbert. “They are trying to have it both ways, and in my view, in most cases, already violating the law as a result,” Potter said.
Legal concerns, however, have not stopped a large portion of the 2016 Republican presidential field from declaring themselves non-candidates and operating unlimited-money vehicles.
Former Florida Gov. Jeb Bush launched his non-campaign with the awkward statement that he would “actively explore the possibility of running for President of the United States." Bush is in charge of a super PAC and a leadership PAC operating under the same name, the latter of which is bound by certain contribution limits.
Rick Santorum, a former senator from Pennsylvania and 2012 presidential candidate, slipped up at a forum this year by mentioning “the campaign” before correcting himself, “[N]ot that we're in a campaign ... I'm just clarifying. The FEC is watching.” Santorum leads both a super PAC and a nonprofit group that raise unlimited sums from donors.
More than a year and a half before Election Day, the 2016 campaign is already showcasing the complete breakdown of a federal campaign finance system rooted in strict limits on donations. Thus far, the unlimited money chase has made the invisible primary -- the period before the actual primary elections when candidates seek to consolidate support among influential party leaders and big-money donors -- rather visible.
Candidates -- or, ahem, those actively considering becoming candidates -- are called to attend summits hosted by donors across the country. Already, Bush, Walker, New Jersey Gov. Chris Christie, former Texas Gov. Rick Perry and Sens. Ted Cruz (Texas), Rand Paul (Ky.) and Marco Rubio (Fla.) have been summoned to Las Vegas for casino tycoon Sheldon Adelson’s Republican Jewish Coalition conference, to Des Moines for mega-donor Bruce Rastetter's Iowa Ag Summit and to Florida for the Club for Growth’s gathering of wealthy donors looking to preview the 2016 product line.
At some point before the actual vote-counting starts, the non-candidates will have to reveal their true form and move on from pretending to not be a candidate to pretending to care about campaign finance rules. Then they will, in the eyes of the law, separate themselves from their super PACs and nonprofits.
Federal coordination rules ban independent groups from discussing with candidates' campaigns their advertising content or being involved in ad production or other campaign activities. But the candidates will have already used their stature to attract donors to those super PACs and provided months of direct oversight of the groups' hiring and strategy.
The former director of a major super PAC told The Huffington Post that this prior involvement will be invaluable heading into the caucuses and primaries of early 2016. “You develop a chemistry working with people, right?” the former director said. “And so you often know the answers to questions before you even have to ask them. And if you spent a year working together at the same office, you’re in a much better place in terms of being able to coordinate without being able to coordinate.”
By commingling campaign and super PAC staff early on, the future candidates ensure that the two teams are of one mind regarding fundraising targets, campaign themes and overall strategy. Or, as Gore Vidal once said about the power elite, “They don't have to conspire because they all think alike.”
Take Bush adviser Mike Murphy, who is helping to hire staff and direct the political strategy for the pending campaign while still deciding whether he will work for the Bush campaign itself or the super PAC.
Fundraising is also “totally different,” the former super PAC director said. While some donors are true believers and will give no matter what, others want either access to the candidate now to ensure they have his or her attention later or access to the crowd around the candidate to be a part of that experience.
“For the people who want access to the candidate and the crowd, those people would give a lot more money if you actually had the candidate to grant,” the former director said. Which in the non-candidate phase, you do.
The benefit of the non-candidate's involvement is evident in current fundraising for Bush’s super PAC. A $4 million fundraiser hosted by private equity billionaire Henry Kravis in New York sparked Florida donor Mike Fernandez to promise a $5 million event, including a $1 million contribution from Fernandez himself.
The close connection between super PAC and presidential candidate is more open this year, but it's not new to this electoral cycle.
Following his failure in the 2008 Republican primary campaign, Mitt Romney’s team decided they would need an outside vehicle to attract large contributions from supporters and attack rivals when he ran in 2012. This unit, originally housed within the campaign and known as Avatar, would become the super PAC Restore Our Future. It would ultimately spend $142 million on the 2012 campaign.
The book Double Down: Game Change 2012, by Mark Halperin and John Heilemann, details the inside story of how Restore Our Future was created by the Romney campaign and incubated in its office until the last possible minute. “Although Restore was operationally independent from Team Romney, in every historical, genetic, and practical sense it was a subsidiary of the campaign,” they wrote.
The super PAC was staffed with people “attuned to Romneyland’s strategic and tactical proclivities, so that when the two sides were legally forced to curtail communications, they would be as much in sync as possible,” Halperin and Heilemann reported. The key super PAC staffers were Romney’s former political director Carl Forti, former ad man Larry McCarthy and former counsel Charlie Spies. (Spies is now counsel to Bush’s Right to Rise Super PAC.)
In what should be seen as a preview for 2016, the Romney camp delayed the separation of Restore Our Future from the campaign as long as possible. The lawyers determined that it would need to separate from the campaign 120 days before it could start running ads. This time frame led them to choose August 2011 as the separation date so that Restore Our Future could go to work in December ahead of the Jan. 3, 2012, Iowa caucuses.
The only difference is that Romney’s camp did this quietly. Nearly the entire 2016 Republican field is now doing it in broad daylight.
This kind of false non-candidacy is not a problem originating with the Citizens United decision, although the ruling's boost to super PACs makes delaying candidacy more appealing. It is instead a problem of non-enforcement of existing laws, according to Potter. And hopes for a remedy are dim.
Potter and the Campaign Legal Center, a watchdog group he founded, contend that federal law clearly states that any candidate testing the waters or exploring a presidential run must remain within the bounds of the campaign contribution limits. But as with so many other aspects of electoral law, the Federal Election Commission has failed to give that requirement any teeth.
“As long as the FEC is unable to enforce the law, I see nothing to make it any better,” Potter said. “But that’s not a legal issue. That’s a question of an agency that isn’t doing its job. That could be changed, but it hasn’t been changed.”