WHY THIS MATTERS:
The 2020 presidential election season had a record early start with Congressman John Delaney (D-MD) formally launching his presidential campaign in August 2017. Between now and the 2020 election, Common Cause will be tracking actual and prospective presidential candidates and their supporters on this site to make sure they follow the rules that protect our elections from special interest influence.
In the early stages of the 2020 presidential race we’ll be focused on legal requirements for those who are “testing the waters” of candidacy and those who become full-fledged candidates. And from beginning to end of the 2020 presidential race, we’ll be watchdogging candidates for compliance with contribution limits, coordination restrictions, disclosure requirements and all other aspects of campaign finance laws.
When it comes to election law, there's 3 kinds of people:
Media speculation and campaigning for the 2020 presidential election season has already begun, so it’s time to start tracking actual and prospective candidates who are traveling to Iowa and New Hampshire, raising funds and building 2020 campaign machines.
The field of challengers to President Trump will undoubtedly be large and deep. And with past presidential elections as a guide, we can be certain that many candidates will spend months and years engaging in obvious campaign activity—while denying that they are even “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.
Regarding the “how” part, the simple explanation is that the Federal Election Commission (FEC) has for decades failed to adequately enforce our campaign finance statutes and regulations.
Back in 1986, an FEC Commissioner wrote in frustration: “In its rulings on unannounced presidential aspirants the [FEC] has, step by step, gotten itself into the absurd position that it refuses to acknowledge what everyone knows: that Vice President Bush is running for President.” Of course, then-Vice President George H.W. Bush went on to become the 41st President of the United States.
Things have only gotten worse in the ensuing decades. In the 2016 presidential race, the FEC didn’t stop Jeb Bush from raising more than $100 million in unlimited contributions to a super PAC he founded, all the while denying that he was even “testing the waters” of a presidential campaign. The apple doesn’t fall far from the tree!
Why does this matter? For more than 100 years federal law has restricted contributions to candidates and the Supreme Court has consistently upheld such restrictions as vital to reducing the threat of corruption that results from large contributions. Enforcement of the candidate contribution restrictions for “testing the waters” activities is crucial to protecting the integrity of elections and democratic governance.
Despite the FEC’s general failure to adequately enforce legal requirements for those “testing the waters” of federal candidacy, the FEC has made clear through advisory opinions and other guidance the types of “testing the waters” activities that trigger contribution limits and prohibitions:
How to know someone's "testing the waters"
- Conducting a poll for the purpose of determining whether an individual should become a candidate;
- Telephone calls for the purpose of determining whether an individual should become a candidate;
- Travel for the purpose of determining whether an individual should become a candidate;
- Polling expenses for determining the favorability, name recognition, or relative support level of the candidate involved;
- Compensation paid to employees, consultants, or vendors for services rendered in connection with establishing and staffing offices in states other than the candidate’s home state and in or near the District of Columbia;
- Administrative expenses, including rent, utilities, office supplies and equipment, in connection with establishing and staffing offices in states other than the candidate’s home state and in or near the District of Columbia;
- Travel expenses to attend, address and rent hospitality suites at state political party conferences where the individual “indicates his potential interest in, and his ongoing consideration of whether to seek” his party’s nomination;
- Travel expenses for private meetings with state party leadership to gauge support of a possible candidacy; and
- Expenses to set up “steering committees” in early caucus/primary states with the understanding that the committee will become the official campaign organization in the event the individual runs for office.
How to tell if someone is a candidate
An individual legally becomes a “candidate” when she (1) receives contributions or makes expenditures in excess of $5,000 and (2) either decides to become a candidate or engages in candidate campaign activity such as:
- Using advertising to publicize her intention to run for office;
- Raising funds in excess of what’s needed for “testing the waters” and amassing funds to be used in a campaign;
- Making or authorizing statements that refer to her as a candidate for office (“Smith for President”); or
- Taking action to qualify for the ballot.
Within 15 days of legally becoming a “candidate,” the candidate must register with the FEC and must then:
- Form a political committee;
- Begin filing periodic campaign finance disclosure reports; and
- Continue complying with contribution limits and restrictions, as well as all other candidate campaign finance laws.
This Common Cause website gives the public the information it needs to hold 2020 presidential candidates and prospective candidates accountable—and to hold the FEC accountable for any failure on its part to enforce campaign finance laws. We’ll be highlighting the activities of individuals who appear to be “testing the waters” of candidacy—or actually running for office—without complying with all applicable campaign finance laws. We’ll also provide easy access to FEC complaints and other documents related to legal action taken by Common Cause to hold 2020 candidates accountable.
Expecting those seeking our nation’s highest office to comply with important corruption-preventing campaign finance laws isn’t too much to ask. Common Cause is here to help you do it! You can take action right now to demand the FEC do its job and hold these candidates accountable >>