THE FAIL ISSUE
The week of June 14, 2015

How Jeb Bush makes a mockery of American democracy

By Aaron Sankin

On Monday, Jeb Bush will announce his candidacy for president. For anyone even casually following the 2016 presidential race, this statement makes absolutely no sense.

Since at least December of last year, the former Republican governor of Florida, whose father and older brother previously inhabited the Oval Office, has obviously been in the race. He’s raised tens of millions of dollars and deployed a massive campaign infrastructure around the country. His presence on the campaign trail has been effectively no different than that of his rivals for the GOP nomination like Ted Cruz or Marco Rubio. Despite not being officially in the race, Bush’s efforts have far outpaced other announced candidates like Rand Paul.

Bush has become the frontrunner in the Republican field, both in polling and in funds raised, on the back of a barely concealed lie: that up until this point, he hasn’t been running for president. Instead, Bush has insisted that he’s just been “testing the waters,” deciding whether he wants to ultimately take the plunge.

The distinction matters. It has allowed Bush to circumvent one of the few remaining campaign finance rules in place to curb the influence billionaires and large corporations have over our political system. And it’s afforded him an unprecedented level of involvement with his super PAC, Right to Rise, which aims to raise $100 million by the end of May and will likely serve as the single most important arm of his run for the presidency.

A landmark Supreme Court decision in 2010 allows independent groups to raise and spend an infinite amount of money as long as those expenditures aren’t coordinated with an official campaign. Since Bush doesn’t technically have a campaign yet, the two parties can coordinate all they want—and they’ve capitalized on that opportunity.

According to a count by the Sunlight Foundation, Bush was a featured speaker or guest at 47 Right to Rise fundraisers between January and April. Right to Rise is expected to not only raise far more money for Bush than his official campaign, but according to early reports, Right to Rise will exclusively take on many of the standard duties campaigns traditionally reserve for themselves—such as television advertising, direct mail, data collection, running online ads, phone banking, and possibly even leading “get out the vote” efforts.

Despite not being officially in the race, Bush’s efforts have far outpaced other announced candidates like Rand Paul.

What makes this situation even more ridiculous is that election law has carved out a separate legal space for candidates to test the waters—one that caps donations at $2,700. Bush circumvents that by having Right to Rise charge people $100,000 a head to hear him talk—while pretending to have no official vehicle for raising funds.

Bush’s plan has been so successful in bringing in funds he reportedly asked donors to stop giving money to Right to Rise in chunks larger than $1 million—at least for a few months—as a way to disabuse observers of the perception that he is indebted to a small cadre of wealthy donors.

On June 15, Bush can simply step away from Right to Rise, leaving longtime adviser Mike Murphy at the helm, with the fiction that the two entities are unconnected left intact. Even then, Bush will still be able to headline Right to Rise events; the Federal Election Commission (FEC) issued an advisory opinion stating that a candidate’s presence at a super PAC fundraiser doesn’t constitute coordination. (For whatever it’s worth, during those fundraisers, Bush can only ask each donor to give $5,000, even though they may have already paid $25,000 a head just to get in the door.)

It’s a loophole that makes a mockery of the system—and the 85 percent of Americans who believe there should be limits on how much deep-pocketed individuals and corporations can give to candidates. And yet, because of profound dysfunction at the FEC, the agency tasked with policing these abuses, Bush isn’t likely to suffer a single consequence.

There are, of course, good reasons why candidates should be able to explore the idea of running for president before officially filing papers proclaiming their intention to do so. It’s a long, expensive slog that takes years of constant effort on the part of thousands of people and—during the 2016 race—may cost over a billion dollars per candidate.

The idea that Jeb Bush is still mulling the issue, however, is patently absurd. In an interview during his final show as the host of Face the Nation, Bob Schieffer grilled Bush on precisely what he was doing.

Schieffer: It’s pretty obvious you’re running for president. You’re going around the country, you’re raising huge amounts of money for your super PAC in addition to making all of the traditional campaign stops everywhere. Watchdog groups and some of your opponents are saying you’re really violating campaign laws. Do you think that, in some way, you might just be violating the spirit of the law? Do you feel like you’ve violated the law here?

Bush: No, of course not… I would never do that. We’re going to completely adhere to the law for sure. And should I be a candidate, and that will be in the relatively near future when that decision will be made, there will be no coordination at all with any super PAC.

Schieffer: (Incredulous) Now you’re not telling me that there’s a possibility you may not run?

Bush: I hope I run, to be honest with you. But I haven’t made the decision.

Schieffer: What would have to happen between now and then to convince you not to run?

Bush: I’ve learned not to answer a lot of hypothetical questions.

Schieffer: You’re probably going to run?

Bush: I hope so. I hope I’m a candidate in the near future.

Bush’s actions indicate that he’s doing far more than pinning pictures of the White House to his  Pinterest board. On June 4, a political reporter with the Des Moines Register tweeted Bush’s apparent post-announcement campaign schedule.

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The idea that Jeb Bush is still mulling the issue is patently absurd.

It’s a fiction that even the candidate himself has had trouble keeping straight. During a recent stop in Nevada, Bush accidentally told a local news station that he was running for president, only to catch himself mid-sentence.

Paul Ryan—senior counsel at the Campaign Legal Center, not Mitt Romney’s 2012 running mate—told the Kernel that, according to the law, actions speak louder than words. “Whether or not someone admits they’re a candidate is not dispositive of whether or not they’re a candidate under the law,” he said.

Ryan argues there are a couple of ways someone could be considered a candidate for legal purposes, regardless of what they’re saying in public: if someone raises more money than is reasonably necessary to explore a candidacy or they amass funds ultimately used in the official campaign. Ryan’s organization has filed a series of complaints asking federal regulators to look into not only Bush’s activities but those of three other candidates: fellow Republicans Rick Santorum and Scott Walker, as well as Democrat Martin O’Malley.

In March, the group sent a letter to the FEC charging that all four of the candidates were raising money in increments over the $2,700 limit for “testing the waters” activities. Furthermore, the Campaign Legal Center added that Bush, Santorum, and Walker had crossed the threshold of actually being full-fledged candidates.

“None of these candidates acknowledge having an official ‘testing the waters’ operation,” Ryan said. “They all denied they were testing the waters, publicly at that point, which is why we filed the complaint.”

The most influential model for Right to Rise was the 2012 Romney campaign. In January 2011, a lawyer named Charlie Spies helped create a super PAC called Restore Our Future to support Romney, even though Romney didn’t officially kick off his campaign until that April. While Restore Our Future went on to be a major player in the election, raising over $140 million, it was still a relatively small operation during those early months, with only a few million in the bank. Most importantly, running the super PAC just to support a candidate who had yet to jump into the race, even though it was certain he would eventually do so, didn’t get any pushback from the FEC.

Spies is now backing Bush as the lawyer for Right to Rise, using the same framework but taking it to a much more extreme degree.

It’s a fiction that even the candidate himself has had trouble keeping straight.

The Bush campaign may very well be breaking the spirit, if not the letter, of campaign finance laws, but it’s unlikely the FEC will be able to do much about it. Earlier this year, FEC Chairwoman Ann Ravel told the New York Times the commission, which is split evenly between Democrats and Republicans, is so mired in partisan gridlock that it will be completely unable to curb even modest abuses during the 2016 cycle.

“The likelihood of the laws being enforced is slim,” Ravel told the Times. “I never want to give up, but I’m not under any illusions. People think the FEC is dysfunctional. It’s worse than dysfunctional.”

The problem is that the Republicans on the commission don’t seem particularly interested in chasing anyone who violates campaign finance laws. Since 2011, the Campaign Legal Center has filed 19 complaints with the FEC, and only four of them have been resolved.

The lackluster prospect of progress at the FEC is why the Campaign Legal Center has also filed a complaint with the Department of Justice (DoJ). The DoJ has jurisdiction over campaign finance, but since it can only prosecute “knowing and willful violations,” the department is held to higher evidentiary standard than the FEC—think “beyond a reasonable doubt” versus “a preponderance of evidence.”

The Justice Department has historically only really gone after straw donor schemes, where a rich person secretly gives an illegally large hunk of money to a candidate in the names of other people. However, earlier this year, the DoJ, for the first time ever, prosecuted a case in Virginia against a campaign operative who had illegally coordinated with a super PAC. The Campaign Legal Center took it as an encouraging sign that maybe, just maybe, there’s a new cop on the beat.

Without some sort of policing, this type of super PAC–enabled bending of the rules will be a major step down a path toward a politics without any of the few meager structures in place to prevent the rich and connected from having the only levers of power that matter. And the Jeb Bush campaign won’t be last to capitalize on it.

Illustration by J. Longo