Ann M. Ravel is chair of the Federal Election Commission. She holds one of the three Democratic seats on the six-member commission.
The news lately is full of reports that some politicians are going to great lengths to avoid being labeled candidates for president in 2016. Some reports have even suggested that these “un-candidates” can more or less do as they please, raising unlimited sums and coordinating with super PACs and other outside spending groups. This view is simply not accurate: Politicians cannot avoid campaign finance laws merely by not calling themselves candidates.
The rules are clear: Individuals who are, as the Federal Election Commission puts it, “testing the waters” — considering whether to become candidates — are not in an anything-goes zone. Quite the contrary, they are subject to the same fundraising limits as declared candidates, and they cannot establish and coordinate future support with outside groups.
The testing-the-waters rules were conceived as a limited postponement of the reporting requirements, to afford potential candidates some space to determine whether their candidacy was viable. Many individuals reasonably want time to see if they have a chance to win. They may take steps such as commissioning a poll or calling potential supporters — both legitimate testing-the-waters activities. If they decide a candidacy would not be viable, they can walk away.
On the other hand, if evidence suggests that potential candidates have made up their minds to run — or if they begin to engage in campaign activity — they must disclose their contributions and expenditures to the FEC. This is done so everybody knows who supports each candidate and how the candidates are spending their money.
If potential candidates amass significant funds to support their campaign or conduct activities over a lengthy period of time, they are candidates. Simply denying one’s candidacy does not provide license to ignore the rules.
Some news reports suggest that potential candidates are trying to avoid even testing the waters; that is, they are merely thinking about considering whether to run for office. If this sounds absurd, it’s because it is. Once individuals raise or spend even a modest sum of money — $5,000 — while considering a candidacy or actually campaigning, or consent to someone else spending that money on their behalf, they are either exploring a run for office or they are candidates. There is no such thing as pre-testing the waters.
Many assume that the FEC will not enforce the law in this area — that the commission will ignore even blatant violations of the rules. It is true that, in recent years, the commission has had a poor record of conducting investigations and exacting proportional penalties. That’s a problem. Some advocacy organizations have already made allegations regarding testing-the-waters activity, in complaints received by the FEC after this commentary was submitted to The Post. I can state only that, while we would not, and do not now, pre-judge any particular set of facts, the commission has an obligation to enforce these rules as they are written.
Citizens care that everybody plays by the rules, and they believe that those who break the rules should be held accountable. Americans do not so easily dismiss unlawful activity, and politicians and journalists should not, either. Candidates from every party who have decided to seek the highest office in the land should be straight with the American people.
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