'Testing The Waters': The Unseen Significance Of A Candidate Cliche

MYRTLE BEACH, SC - MARCH 18:  Former Florida Gov. and potential Republican presidential candidate Jeb Bush speaks to supporte
MYRTLE BEACH, SC - MARCH 18: Former Florida Gov. and potential Republican presidential candidate Jeb Bush speaks to supporters during an early morning GOP breakfast event on March 18, 2015 in Myrtle Beach, South Carolina. Bush announced in December that he 'actively explore' a presidential run in 2016. He is currently on a two day tour through South Carolina and will attend several fundraising events. (Photo by Richard Ellis/Getty Images)

A few weeks ago, I had the occasion to write about the myriad steps that a human being takes along the way to becoming a presidential candidate -- from the period in which supporters "draft" a candidate to that person's "active explorations" to "laying the groundwork" for a run to the run for office itself. The process is humorous, in that we have this tortured and convoluted way of talking about people that are obviously running for office well in advance of their formal declaration. But there's a deadly serious side to it as well: Up until a person formally becomes a candidate, they are legally allowed to coordinate with super PACs. Hell, they can even found their own super PAC!

So much of this weird and serpentine path that would-be office-seekers take as they flower into full-fledged candidates blessed by the Federal Election Commission is an elaborate means to navigate, and in some cases circumvent, what remains of our campaign finance regulatory regime. For that reason, I regret not including an important step in every candidate's journey -- the moment they start "testing the waters." As it turns out, this silly little phrase -- a well-worn election cycle cliche -- is freighted with significance, especially if you are a fan of robust reforms to our broken campaign finance system

Now on the face of it, of course, this sounds silly. Just about everyone we consider to be a de facto contender for the nation's highest office has obviously had a toe in those briny waters for some time. But for the Campaign Legal Center's Paul S. Ryan, it's a critical distinction. So critical, in fact, that Ryan authored a whole report, "'Testing the Waters' and the Big Lie: How Prospective Presidential Candidates Evade Candidate Contribution Limits While the FEC Looks the Other Way."

With the 2014 midterm elections behind us, public attention has shifted to the 2016 presidential election. News stories appear daily about prospective 2016 presidential candidates' repeated trips to Iowa and New Hampshire, extensive fundraising and campaign machine building. Yet none of the early frontrunners -- former Governor Jeb Bush, Governor Scott Walker and more than a dozen other politicians -- will even admit that they are "testing the waters" of a presidential campaign. Why is this? And how can it be?

The "why" part is easy to explain. Federal law requires an individual who is "testing the waters" of a federal candidacy to pay for those activities with funds raised in compliance with the federal candidate contribution restrictions -- no individual contributions above $2,700, no corporate or labor union funds. "Testing the waters" means activity "undertaken to determine whether the individual should become a candidate," including, for example, travel to see if there is sufficient support for one's candidacy. Prospective presidential candidates deny that they are "testing the waters" in order to evade the candidate contribution limits.

Ryan goes on to explain that at the moment, "only Senator Lindsey Graham and former Senator Jim Webb appear to be complying with the federal campaign finance law requirement that 'testing the waters' activities be paid for with candidate-permissible funds." The rest, says Ryan, are playing fast and loose with their super PACs and PACs, raising money in amounts that far exceed $2,700 for any number of things that look a hell of a lot like wading in the metaphoric waters.

Ryan expands on his paper in Politico on Tuesday, arguing that the media is "ignoring a major story" and suggesting a way they can correct this:

Every reporter on the campaign trail should be sticking a microphone or a pocket recorder in the face of prospective candidates and asking them, point blank, whether they are "testing the waters" of a presidential run -- i.e., whether they are spending any money in the process of determining whether to run. If they deny that they are "testing the waters" of candidacy, that absurdity alone warrants reporting. And if they acknowledge that they are "testing the waters," they should be asked about their fundraising above the $2,700 candidate limit and whether they are complying with federal campaign finance laws.

This is a pretty good example of how rampant government corruption can manifest itself as a thousand, seemingly boring, "paper cut" offenses, where no single instance looks like it threatens to exsanguinate our democracy. But without some attention, this abuse will continue. And sadly, our media's attention to corruption is quite limited in its scope.

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