Will Jeb Bush Get Away With His ‘Scheme’ to Skirt Campaign Finance Rules?

With candidates and outside groups already raking in money for the 2016 presidential contest and the Federal Election Commission abdicating its duty to enforce campaign finance laws, watchdog groups are pushing the Department of Justice to fill the void. To start, groups are asking the DOJ to investigate one of the most blatant exploiters of lax enforcement: Jeb Bush.

For months now the former Florida governor has kept up the elaborate charade that he is not quite sure if he will run for the Republican presidential nomination. “No, no. I’m not an official candidate,” he said during an exchange with reporters a few weeks ago—never mind that he’s been crisscrossing the country raising amounts cash unprecedented for an undeclared candidate. Bush himself has struggled to maintain the farce, as he demonstrated minutes later when he accidentally declared, “I’m running for president in 2016.”

The implications of Bush’s protracted non-candidacy are serious. By waiting to announce his bid for the White House, Bush has skirted one of the last remaining campaign finance rules: the ban on coordination between candidates and Super PACs. (To be sure, that supposed firewall already looks more like a shower curtain.) Once Bush officially declares his intention to run, his campaign will be bound by that rule and by limits on donations directly to candidates ($2,700 in the primaries). But until then, absent action by regulators, Bush is apparently free to raise money and direct strategy for Right to Rise, the Super PAC that is expected to eventually take on many operations normally undertaken by a campaign committee—not just television and online advertising but also direct mail, data collection, and phone banking. And unlike a campaign committee, the Super PAC’s ability to raise money for these activities won’t be hampered by contribution limits.

In a letter sent to Attorney General Loretta Lynch on Wednesday, the Campaign Legal Center and Democracy 21 allege that Bush and Right to Rise are “engaged in a scheme to allow unlimited contributions to be spent directly on behalf of the Bush campaign and thereby violate the candidate contribution limits enacted to prevent corruption and the appearance of corruption.” The groups asked the DOJ to appoint a special counsel from outside the department to investigate the allegation, noting that it would look suspicious were a Democrat-appointed Attorney General to go after a Republican candidate.

The letter argues that Bush should be considered a candidate despite his disavowals, because he’s been acting like one “in all pertinent respects.” He’s hired strategists and buttered up local Republican leaders in early primary states like New Hampshire and Iowa. He’s headlined dozens of events for Right to Rise, many of them fundraisers with a $100,000 ticket price. His advisers are overseeing the Super PACs operations. Reportedly Bush has even set the timing of his official campaign announcement—expected mid-June—to leave room for a “cross-country fundraising tour” for Right to Rise before the non-coordination rule kicks in.

Democracy 21 president Fred Wertheimer said that Bush’s association with Right to Rise is “the most blatant example to date” of how Super PACs dedicated to a single candidate are being used to circumvent contribution limits. But Wertheimer’s group and the Campaign Legal Center are preparing to ask the DOJ to probe other potential violations by presidential candidates and individual-candidate Super PACs.

While the FEC has jurisdiction over civil enforcement of campaign finance laws, the Justice Department can pursue criminal, or “knowing and willful,” violations. The DOJ’s first prosecution involving coordination between a Super PAC and a campaign committee was announced in February, in a case involving a campaign manager for a Virginia congressional candidate who coordinated with a Super PAC to leverage $325,000 in advertising against a rival. Assistant Attorney General Leslie Caldwell said at the time that the department “is fully committed to addressing the threat posed to the integrity of federal primary and general elections by coordinated campaign contributions, and will aggressively pursue coordination offenses at every appropriate opportunity.”

“The Justice Department is the only place where we have a chance of getting the laws enforced,” Wertheimer said. “The FEC is useless.” The chairwoman of the commission, which is hamstrung by a three to three split among the commissioners, acknowledged as much recently when she told the New York Times that “the likelihood of the laws being enforced is slim… People think the FEC is dysfunctional. It’s worse than dysfunctional.” If neither enforcer steps up, then according to Wertheimer “We’re going to see the most massive campaign finance violations in the history of the country, done by various presidential candidates.” (A DOJ spokesperson told The Nation that the department would review the letter, but declined to comment further.)

Daniel Weiner, counsel for the Democracy Program at the Brennan Center for Justice and a former FEC staffer, shares Wertheimer’s critique of the commission. “It beggars belief that there hasn’t been a single case worth bringing in the last six years,” he said, noting that the FEC hasn’t pursued any cases related to the coordination rule since the Supreme Court unfettered Super PAC spending in Citizens United.

But Weiner doesn’t believe that the DOJ can “substitute for competent and active civil enforcement,” because not all violations that warrant a response from regulators rise to a criminal level. “Sooner or later we need to do something about the FEC. It’s nice to talk about the Justice Department, and I support efforts to get disclosure through other avenues, but as long as we have a completely dysfunctional civil regulator there’s going to be an elephant in the room,” he said.

And if that doesn’t happen before the 2016 contests truly heat up? “We’re going to have the Wild West,” Weiner concluded.