New “Testing the Waters” Report Examines How Presidential Candidates Ignore Campaign Finance Laws & Regulators Let Them

Today, Common Cause released a new report on the many ways presidential candidates bend and break campaign finance laws as they barnstorm early primary states, fundraise, evade contributions limits, and build their campaign teams while denying they are running for office. “‘Testing the Waters’ or Diving Right In?” is part of Common Cause’s 2020 Candidate Watch project through which the organization will watchdog candidate compliance with and government enforcement of campaign finance laws during the current election cycle.

The report, which should serve as a useful resource for reporters’ ongoing coverage of the 2020 presidential election, outlines how for decades candidates in presidential elections have pushed legal boundaries in the early stages of campaigns. But things reached a new level of absurdity in 2015, when Jeb Bush spent the first half of the year raising more than $100 million in illegal-to-candidates funds for a super PAC he set up, while denying that he was a candidate. He then announced his candidacy, the super PAC spent the funds supporting his candidacy, and the Federal Election Commission (FEC) let him get away with it.

The report concludes with a recommendation that the FEC repeal its regulation exempting presidential candidates from certain campaign finance laws while they are “testing the waters” of a campaign.

“Americans expect and deserve candidates who obey the laws on the books when they run for president and they expect to see those laws enforced,” said Paul S. Ryan, report author and Common Cause V.P. for Policy & Litigation. “For too long the FEC adopted a ‘hear no evil, see no evil, speak no evil,’ approach to enforcement of the laws that presidential candidates routinely break early in their campaigns. Complaints I filed with the FEC in 2015 regarding obvious violations still sit before the Commission unresolved. We are hopeful that the prosecution and conviction of Michael Cohen, former personal lawyer and fixer to Donald Trump, represents a new commitment by the Department of Justice to enforce the campaign finance laws the FEC refuses to enforce—and that we won’t see a repeat of the lawlessness that characterized the beginning of the 2016 presidential cycle.”

The report consists of five sections followed by a conclusion and recommendations for how regulators, journalists, and citizens can hold candidates accountable and end the spiraling cycle of abuse of our nation’s campaign finance laws by presidential candidates.

  • Part I traces the history of candidates gaming and ignoring campaign finance laws in the early stages of presidential campaigns.
  • Part II examines Jeb Bush’s 2016 campaign as a case study of what can occur when candidates ignore the law on a colossal scale and regulators refuse to hold them accountable.
  • Part III outlines the laws that determine when an individual crosses the threshold to exploring candidacy and must begin complying with contribution limits and ultimately when the line is crossed that makes some full-fledged candidates under the law.
  • Part IV describes the FEC’s poor and worsening record of enforcing the corruption-preventing laws regulating the exploratory stage of presidential campaigns.
  • Part V examines the vehicles utilized by prospective candidates to lay the foundations of their campaigns without complying with campaign finance laws.
  • The report ends with a “Conclusion & Recommendations” section, which summarizes relevant laws and ends with recommendations for obtaining better compliance with these important laws, including, most importantly, a recommendation that the FEC repeal its “testing the waters” regulatory exemption for presidential candidates.

“Every American deserves a voice in determining our nation’s elected leaders, but the wholesale disregard for compliance and enforcement when it comes to our campaign finance laws has given special interests and the wealthy megaphones to drown out the voices of the rest of us,” said Karen Hobert Flynn, Common Cause President. “Enforcement of our nation’s campaign finance laws is integral to Americans’ faith in our elected officials and in our democratic system, which is why Common Cause will continue to draw attention to and hold accountable those who violate the law and those who refuse to enforce the laws on the books.”

To read the full report, click here.

To visit the website from Common Cause’s 2020 Candidate project, click here.