Funding Liberty — Browne Becomes a Candidate

With respect to (2), the Browne campaign did almost no public political advertising prior to the 2000 National Convention. There was an extensive direct mail campaign to raise money, but direct mail is not public advertising. Fundraising events and State Party conventions are also not public advertising. Without public political advertising, (2) does not lead to candidacy.

Browne did have a major email newsletter, LibertyWire. That newsletter was clearly identified as being distributed only to subscribers who had asked to be sent the material. LibertyWire was on occasion transmitted to Libertarian newsgroups and email lists, but these transmissions were—in every case that I saw—done by outside persons, not by the Browne campaign. There was no indication that Browne incited outside parties to forward his newsletter to these lists, so the forwards were not public advertising by Browne. Thus, under (2) Browne does not appear to have qualified as a candidate.

With respect to (5), Browne did not take substantial active steps to put his name on the General Election ballot. Most Libertarian Presidential ballot access drives are run by the National Party or state parties, not by a Presidential campaign. Such drives routinely serve to qualify a generic Libertarian to be named later for the November ballot. Even as late as Summer 2000, when Browne was the Party’s nominee, the Browne campaign did not try to help the Party put Browne on the ballot in Pennsylvania.

In addition, during 1999 the Browne campaign retained a producer to create a half-hour television infomercial for its campaign. Funds were raised, and some aspects of production occurred. The Fall 1999 fundraising letter associated with the infomercial left the impression that fundraising was being done for its production and distribution. The infomercial had nothing to do with testing the waters; it was a campaign advertisement. While the FEC did not enumerate ‘production of campaign advertisements’ as an act establishing that a person has become a candidate, (1)-(5) were clearly labelled as examples.

In summary, under (3), (4), and (6), Browne had clearly qualified as a candidate within the FEC’s definition, and would be obliged to file with the FEC so soon as he raised $5,000. Browne had also performed non-enumerated acts that only a candidate would perform, notably producing campaign advertising. In contrast, (1), (2) and (5) did not qualify Browne as a candidate. However, (1)-(5) are only examples of ways in which a person may qualify as a candidate. Qualifying as a candidate under any one of them is adequate to make someone a candidate.

One might reasonably dispute the precise date on which Browne had qualified as a candidate and was required to file. However, an effort to amass money for the election campaign was claimed to have begun in early 1997. As we saw in the previous Chapters, the effort was not very effective, but it was an effort. ‘Protracted’ is also imprecise, but by the start of 1999 Browne activities had gone on for several years, which is longer than the full lifetimes of campaigns of most other major party Presidential candidates. By early 1999, Browne had raised more than $5000 and thus was almost certainly obliged to file campaign finance reports with the FEC.

Indeed, in a letter dated 30 June 2000 from the FEC to Perry Willis, the FEC said of the February 1999 and later reports “…your committee has apparently failed to file in a timely manner.” Thus, in the end the FEC did finally determine—subject to an appeal that does not seem to have been made—that Browne was obliged to file reports beginning in early 1999. To date, the FEC has not undertaken further enforcement action in support of its observations about Browne’s 1999 filings.

Behind the FEC reporting issue was the reality of the Browne campaign. By December 1999 the Browne campaign had come nowhere close to either of its objectives. The new members weren’t there. The money wasn’t there.

How did the Browne campaign survive these failures?