When Does A Candidate Become A Candidate?

Bradley A. Smith Institute for Free Speech
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Many politicians want to run for president someday, some have probably wanted to do so since childhood. But when does one actually become a candidate?

When did Hillary Clinton become a presidential candidate or start “exploring” a run? Many would say she’s been angling for the 2016 race since the day after President Obama’s election in 2008. Others would say she’s been running ever since Bill won his second term in 1996. Donald Trump has “explored” a presidential run since 1988.

A group supporting more campaign regulations called the Campaign Legal Center (CLC) recently filed a complaint with the Federal Election Commission (FEC) alleging that four candidates violated federal law by not declaring their presidential candidacies until June.

When one officially becomes a candidate matters because becoming a “candidate” triggers a host of legal requirements under the Federal Election Campaign Act (FECA). A candidate has to publicly disclose detailed, personal financial information. A campaign’s fundraising is heavily regulated, along with a candidate’s ability to raise funds for other causes, to be reimbursed for travel to speak at colleges or to civic groups, and even to accept volunteer help.

CLC’s main target is Governor Jeb Bush. CLC complains that, well before his June announcement, Bush had been raising money, not for his campaign, but for two political action committees, Right to Rise PAC and Right to Rise Super PAC, which promote issues and candidates aligned with his political agenda.

However, raising money for other candidates and issues, even if it might indirectly help a person run for office, doesn’t make one a candidate. In fact, FECA specifically defines a “candidate” as someone who raises or spends more than $5,000 to run for office.

For example, Hillary Clinton has raised substantial sums for the Clinton Foundation, which then paid for her to travel and make public appearances. That did not trigger legal status as a candidate. Similarly, Joe Biden doesn’t become a candidate merely by speaking at a fund-raiser for the Democratic National Committee, even though doing so will help him if he decides to run for president.

Other things CLC argues made Bush a candidate for president? He made phone calls to talk to people about running, traveled to Iowa, gave speeches to Republican groups, met with state party leaders around the country, and publicized his activities on social media. In other words, he acted like every other officeholder who dreams of running for president someday, including many who will never run. Does even “pre-campaign” activity now require regulation by the federal speech police?

Yes, says CLC. It argues that even if Bush wasn’t a candidate, he was “exploring” a presidential run, and should have created what the FEC calls a “testing the waters” committee. A “testing the waters” committee is essentially subject to the same complex rules as a candidate committee, with two notable exceptions: it is not required to disclose its donors until the individual actually becomes a candidate; and it does not require a potential candidate to disclose private financial information unless he actually becomes a candidate. Also, unlike money a politician raises for other candidates and organizations, funds raised to “test the waters” can later be converted to his campaign.

So “testing the waters,” which doesn’t appear in federal law, is a creation of the FEC to assist potential candidates. It was not intended to subject every person who thinks about running for office to hundreds of pages of FEC rules dictating how a political campaign is run.

CLC wants the FEC to undertake a “fact-based” investigation to determine the moment that Jeb Bush and others became “actual” candidates, or began “testing the waters.” If that approach were the law, there would be no clear rules defining when one crosses the line from thinking about running to actually running, and Governor Bush and other candidates could be subject to criminal penalties for speaking about issues of importance to them, or for helping like-minded candidates raise money.

In September of 2014, for example, Hillary Clinton appeared at a “Steak fry” in the early caucus state of Iowa. Does paying for a flight to Des Moines, buying a tank of gas, and eating a steak, more than two years before an election make one a candidate? Under CLC’s bizarre approach, it might. Or it might not. Guess wrong, and Secretary Clinton could be fitted for an orange pantsuit.

Just as reading want ads isn’t the same as applying for a job, preparing to run isn’t running. Under the law, politicians become candidates when they raise or spend $5,000 for their own campaign committees. Period. Who is or isn’t legally a candidate for office is not up to a bunch of bureaucrats reading political tea leaves.

Bradley A. Smith, a former chairman of the FEC, is chairman of the Center for Competitive Politics.