WASHINGTON -- Former Florida Gov. Jeb Bush (R) is not running for president yet. Or, at least, that's what he would have everyone believe as he skips around the country raising tens of millions of dollars.
Since Bush claims not to be a candidate, he contends he's not bound by numerous campaign finance limits, including the prohibition against a candidate running a super PAC -- which is something he is doing now.
Not everyone is buying Bush's argument that he should not be considered a candidate or the notion that a plan to let an "independent" super PAC run much of his campaign-to-be is legitimate. Democracy 21 President Fred Wertheimer, along with fellow advocates at the Campaign Legal Center, has already filed complaints with the Federal Election Commission against Bush and other White House hopefuls for acting like candidates while not following the rules that apply to individuals acting like candidates.
The Huffington Post talked to Wertheimer, a longtime campaign finance reformer, about what Bush is doing, how campaign finance watchdogs are responding and what laws ought to apply in this situation. The interview has been edited for length and clarity.
Multiple media reports indicate that Jeb Bush is planning to run a lot of his campaign out of the super PAC for which he is currently raising large contributions. How is this possible?
All of this is based on the fact that political operatives are operating on the basis that there will be no enforcement of the campaign finance laws. So they have become even more brazen in [the] 2016 [electoral cycle] than they were in 2014 and 2012. The idea that you will use your individual-candidate super PAC as your candidate campaign committee is mind-boggling. And we are working, joined by the Campaign Legal Center, at looking at all of these individual-candidate super PACs and the issue of illegality under a provision of [the Bipartisan Campaign Reform Act of 2002] that prevents a candidate or a candidate’s agents from directly or indirectly establishing, maintaining, controlling or financing an entity that raises and spends unlimited contributions.
Now, we understand the problems we face with a paralyzed Federal Election Commission. But it’s our view that a public record has to be developed to show that the individual-candidate super PACs and the presidential candidates they’re supporting are not just thumbing their noses at the campaign finance laws, but at the American people.
How is what Jeb Bush is doing with his non-campaign different than what other presidential candidates have done in the past?
Well, what they [the Bush team] have done is attempted to treat their view that he is not a candidate as a basis for doing things that they obviously recognize would be illegal if done by a candidate. So they created a super PAC. They’re raising money for it. It’s tied directly to Bush. And they’re doing it all before -- in their view, he’s not a candidate. Now, we joined the Campaign Legal Center in filing complaints against a few of these [candidates], including Bush, that claim that he was clearly testing the waters and clearly a candidate and, we felt, already a candidate.
In the last election, people who became presidential candidates established super PACs and used them to support their presidential campaigns. When I say "established," [I mean] established through proxies. [But] both Obama and Romney, through their candidate campaign committees and the parties, spent far more on their presidential campaigns than the super PACs supporting them.
This time around, it is likely that super PACs will spend the majority of funds supporting the presidential candidates and in some cases, in essence, do a mind meld and merger with the campaign committees. Now, all of this is simply eviscerating the candidate contribution limit. The only purpose of the individual-candidate super PAC is to evade and circumvent the candidate contribution limits, and in doing so, they’re taking us back to the pre-Watergate system of no candidate contribution limits. A system that the Supreme Court in Buckley [v. Valeo] described as inherently corrupt. And a system that led to the worst campaign finance scandal in the 20th century.
Can you explain the laws that should be applying to Bush?
The FEC has substantially weakened the coordination statute through improper regulations that they don’t enforce anyway. But there is a provision, which was enacted as part of the ban on soft money and federal candidates soliciting soft money, that prohibits a federal candidate directly or indirectly from, in essence, having the kind of individual-candidate super PACs that these presidential candidates apparently are going to have. So the Bush folks argue, well, he’s not a candidate so he can do all of this. And they argue that once he becomes a candidate, he won’t coordinate. But that misses the provision that we’re focused on, which is even if he’s not a candidate now -- and we don’t see that -- and then he becomes a candidate, that provision [against having an individual-candidate super PAC] kicks in. And we believe it kicks in in a way that clearly covers him and others who may pursue this route.
As I said earlier, we’ll go to the Federal Election Commission, even though it’s paralyzed by three commissioners who oppose the laws and therefore don’t enforce them. But we’re also going to go to the Justice Department and ask for criminal investigations. And we do have the precedent that the Justice Department in February obtained its first criminal conviction ever for illegal activity involving a congressional campaign and a super PAC supporting the campaign.
But, you know, as long as we are existing in a system where candidates and political operatives assume that the campaign finance laws will not be enforced, for all practical purposes we don’t have campaign finance laws. We don’t have provisions -- we don’t have the contribution limits that Congress enacted to prevent corruption that the Supreme Court to this day has upheld as preventing corruption.
What about the rules about becoming a candidate?
Those are the "testing the waters" provision. That is not statutory, it’s regulations. But we filed complaints saying that Jeb Bush and Scott Walker and Martin O’Malley and [Rick] Santorum, in our view, are all violating the testing-the-waters provisions.
We’re in Catch-22 here. These campaigns thumb their noses at any claims of illegality by simply saying what they’re doing is legal and counting on the fact that the Federal Election Commission won’t do anything about it. I mean, what Jeb Bush has done in this election is unprecedented and obviously unthought of prior to the 2016 presidential race.
What is the worst-case scenario for how long he can pretend to not be a candidate? Could this go into August?
I have no idea. The worst-case scenario here is we end up with massive corruption if and when one of these candidates is elected. There’s no way to know how long they think they can get away without declaring a candidacy.
Now, you know, many of these problems could be corrected if you had a real enforcement agency, if you had a Congress that was open to fixing the problems. These are not insurmountable problems. What is currently insurmountable is a Congress that won’t address fundamental problems and an enforcement agency that won’t do its job. I do not expect that to last forever.
This is an absolute disaster for the American people, and it is a direct result of the Supreme Court’s decision in the Citizens United case. There are growing efforts to build a national movement to challenge and change this system, and that movement is going to grow exponentially as this campaign process unfolds.