The Outlaw Candidate (US News & World Report)


At long last, former Florida Gov. Jeb Bush is expected to publicly declare today what has been obvious to everyone: He is a candidate for the Republican nomination for president. His announcement will bring to an end his awkward charade of simultaneously claiming he has not yet decided if he is a candidate while raising tens-of-millions of dollars to support his candidacy, employing a sizeable campaign staff, travelling to early primary states and fundraising events and giving campaign speeches and attending events here and abroad. According to press reports, as part of this operation, he or his associates set up and control his Right to Rise Super PAC, whose purpose is to support the Bush candidacy. Bush has headlined dozens of fundraisers for the Super PAC, and the pace of its fundraising was initially so brisk that the group reportedly asked donors to limit their contributions to $1,000,000. He has even already changed campaign managers for this supposedly nonexistent campaign.

Why has Bush engaged in this theater of the absurd for so long?

Federal law prohibits corporate and labor contributions to a federal candidate and limits individual contributions to $2,700 per election. Such limitations are in place to prevent corruption. It is illegal for a candidate or any "entity directly or indirectly established, financed, maintained or controlled by or acting on behalf of" a candidate, to raise contributions in excess of federal limits and from prohibited sources. And once someone becomes candidate, he or she is required to file public reports disclosing the money raised and spent as a candidate.

Apparently, Bush believed he could build a massive war chest and set up a sophisticated campaign operation outside of the law and without filing disclosure reports by simply denying – against all evidence – that he is candidate. But occasionally repeating the magic incantation "if I decide to run" does not end the inquiry into his status. Federal law states explicitly that if someone receives contributions or makes expenditures of $5,000 or more for the purposes of seeking nomination or election, he or she is a candidate. And Federal Election Commission rules make it clear that once you start raising money and acting like you are running for election, you are a candidate.

By all accounts, Bush has for months been a candidate and his overdue announcement of his candidacy will do nothing to change that fact. If he has already violated the campaign finance laws, his campaign going forward will be built on a foundation of illegal activity.

While other candidates have blurred or broken the line regarding when they become a candidate, the nature and extent of Bush's reported activities are unprecedented and are strong evidence that his violations are "knowing and willful." This is significant because the Department of Justice has criminal jurisdiction over such violations. That is why my organization, the Campaign Legal Center, along with Democracy 21, has asked Attorney General Loretta Lynch to appoint a special counsel to investigate the allegations and prosecute any violations.

It should never have come to this. The financing of election campaigns is governed by laws enacted to prevent corruption or the appearance of corruption that damages our democracy by undermining the people's faith in the integrity of the very office Bush and the other candidates are seeking. While some reforms have been struck down by the Supreme Court, the core of the law remains intact and should be enforced. But a dysfunctional FEC has abdicated its responsibility to enforce these laws, apparently leading some to think there is little risk and much to gain if you violate the law. While the Bush campaign seems to have pushed the envelope much further than others, we have already filed complaints against other candidates and plan to continue to do so against Democratic and Republican candidates or groups, as warranted.

The FEC's refusal to enforce the laws does not mean the laws can be ignored. In the end, it is our responsibility to obey the law, regardless of whether the police are on the beat. It is not too much to ask those who are applying for the job of president to take the laws that apply to them seriously.

But if Bush and other candidates knowingly and willfully break these laws, then enforcement must come from the Department of Justice. If it doesn't investigate and, where appropriate, prosecute clear violations of the law, the actions of the Bush campaign will become the new norm for both presidential and congressional elections. Contribution limits and prohibitions will be rendered all but meaningless and the public will have to watch our democracy become further corrupted by the appearance of elected leaders catering to the wealthiest among us. 

Lawrence Noble is senior counsel at the Campaign Legal Center. Prior to joining the Campaign Legal Center, he served as president and CEO of Americans for Campaign Reform, practiced political law at Skadden, Arps, Slate, Meagher & Flom, was executive director and general counsel of the Center for Responsive Politics and served as the general counsel of the Federal Election Commission for 13 years. This opinion piece originally ran in U.S. News & World Report on June 15, 2015.  To read it there, click here.