August 12, 2015

WHEN DOES A CANDIDATE BECOME A CANDIDATE? It’s an interesting legal question, posed by law professor and former FEC Chair Brad Smith in this Daily Caller piece:

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. . . .

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.

Smith is adept at pointing out the inconsistency in CLC’s approach to interpreting the Federal Election Campaign Act (FECA). And as much as I like the idea of seeing Hillary Clinton in an orange jumpsuit surrounded daily by large, short-haired and heavily tattooed inmates, I’m not willing to restrict her First Amendment speech and association rights to classify her informal candidacy explorations as the legal equivalent of an actual candidacy (nor is Smith). That principled stance, however, is never shared by liberal/progressive campaign finance “reform” groups like CLC, whose rage is never directed at leftist ideological comrades.

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