In The Arena How 2016ers Are Breaking the Law and Getting Away With It

Paul S. Ryan is senior counsel at the Campaign Legal Center.

Sen. Ted Cruz’s official launch of a campaign makes him the first and only formally declared candidate in the 2016 presidential election. Yet it’s clear to almost everyone that a campaign has been well underway for months. Reporters have been frantically covering the horse race, but until Cruz’s announcement every single one of the horses denied they were racing. Stories are being written daily about a dozen or so Republicans and a couple of Democrats who have publicly expressed interest in being their party’s nominee for president in 2016. They’re reportedly lining up staff for a campaign, traveling to such random places as Iowa and New Hampshire, giving speeches about what they would do if elected, meeting with wealthy donors and fundraising for political committees that, just by coincidence, they or their supporters recently created.

For example, in late January Wisconsin Gov. Scott Walker had formed a committee “in preparation for 2016 presidential bid” and soon thereafter opened an office in Iowa. Also in January, Jeb Bush set up a traditional PAC and a super PAC. Earlier this month it was reported that Bush’s super PAC fundraising was going too well, prompting his camp to make an unusual request of his wealthy supporters: Limit your contributions to $1 million each this quarter. And Bush has spent time this month politicking in Iowa, along with numerous other presidential hopefuls. And though Hillary Clinton, without notable competition for the Democratic Party’s nomination, has had the luxury of laying low in recent months, she has reportedly begun hiring presidential campaign staff, including political directors for the early primary states of New Hampshire and South Carolina.


To listen to Bush, Clinton, Walker and other road show companions like Marco Rubio, Chris Christie, Rick Perry, Carly Fiorina and even Donald Trump, not only are they not candidates, they claim they are not even “testing the waters” of candidacy. In legal parlance, “testing the waters” means engaging in activity for the purpose of determining whether to run for office.

Why do Bush, Clinton and nearly every other prospective 2016 candidate refuse to acknowledge that they are even “testing the waters” of a presidential campaign? Because money spent to test the waters of a federal campaign must be raised under the $2,700 candidate contribution limit — and nearly every prospective candidate is raising funds outside the limit, sometimes even far outside that limit.

So why is the press allowing them to get away with this apparent fiction? As reporters cover the daily activities of these nascent presidential campaigns, they’re ignoring what should be a major story. Any prospective presidential candidate who’s paying for testing-the-waters activities with funds raised outside the $2,700 per donor candidate limit is violating federal law. Isn’t this worth a mention in the stories about Bush’s self-imposed $1 million contribution limit for the quarter?

Have prospective candidates flouted the rules about when the candidate contribution limits kick in during past cycles and gotten away with it? Yes, though not so blatantly. But the simple fact that people regularly get away with violating the law doesn’t justify the violations — and it doesn’t justify the lack of news coverage of such violations. In my recently published paper on this topic, “‘Testing the Waters’ and the Big Lie,” I explain the corruption-preventing importance of the $2,700 candidate contribution limit, the history of prospective presidential candidates evading the limit, and how nearly every prospective 2016 presidential candidate is also getting away with evading the limit. The candidate contribution limit was enacted in the wake of the Watergate scandal; Ronald Reagan became the first presidential candidate to evade it when he set up the Citizens for the Republic PAC in 1977 and used it to lay the foundation of his successful 1980 presidential campaign. But whereas Reagan’s PAC was raising funds under a $5,000 contribution limit and ostensibly focused its activities on the 1978 midterm elections, Bush’s super PAC is reportedly receiving million-dollar contributions and will be spending them in the 2016 presidential election. These differences between the 2016 cycle and past cycles are not merely differences in degree; they are differences in kind.

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.

A little honesty is not too much to ask of individuals seeking to become our next president. If these prospective candidates are willing to lie about their aspirations for our nation’s highest elective office, what are they capable of doing once they hold that office? The stakes are high, and it is time for the public and the media to hold these would-be presidents accountable. It is time to end this tired charade.