FEC reporting requirements made it increasingly difficult for the Browne campaign to hide its actual financial status from the Party faithful. Now we come to the Chapter’s main topic: What are those FEC reporting requirements? What burdens does Federal Election Law impose on a Presidential candidate, and when are those burdens imposed?
In short, a campaign that receives more than $200 in cumulative total from a single person must identify that person as a donor, report the donor’s name, address, employer, and occupation, and report how much the donor gave. A campaign must also report all of its expenditures: who it gave money to, their address, how much it paid, and a short statement of the expenditure’s purpose. Finally, campaigns must report cash flow, cash on hand, and any and all debts. All those reports are public information, available on the World Wide Web at http://www.fec.gov to all comers.
When was the Browne campaign legally required to file its first reports? The answer to that question was determined by Browne’s legal status. Was he a candidate? Or was he a private citizen speaking out on the issues? Private citizens do not, in general, have to report to the FEC. Candidates must report contributions and expenses on a regular schedule.
How does one become recognized as a candidate for President? Is it press coverage? Filing government forms? Having enough supporters? From the standpoint of the mandatory FEC reporting requirements, the only definition of “candidate” that matters is the FEC’s definition.
So how does the FEC define candidacy?
The Federal Election Commission “Campaign Guide for Congressional Candidates and Committees” (April 1999) deals with reporting requirements. The FEC opens by stating that the document
“ …may be used by committees supporting Presidential candidates who are not seeking Federal matching funds. However, special reporting rules apply to Presidential candidates…”
When does a person become a candidate? The FEC recognizes an activity that is not candidacy by using the cognomen “testing the waters”, saying of it:
“An individual may conduct a variety of activities to test the waters. Examples of permissible testing-the-waters activities include polling, travel, and telephone calls undertaken to determine whether the individual should become a candidate. 100.7(b)(1) and 100.8(b)(1).” [The last numbers are references to Federal Regulations 11 CFR. GP]
However, at specified points ‘testing the waters’ becomes ‘campaigning’. The FEC then writes of campaigning:
“Certain activities, however, indicate that the individual has decided to become a candidate and is no longer testing the waters. In that case, once an individual has raised or spent more than $5,000, he or she must register as a candidate. Note that, when an individual decides to run for office, funds that were raised and spent to test the waters apply to the $5,000 threshhold.
Campaigning (as opposed to testing the waters) is apparent, for example, when individuals
- [Numbering is mine. GP] Make or authorize statements that refer to themselves as candidates (“Smith in 2000” or “Smith for Senate”);
- Use general public political advertising to publicize their intention to campaign;
- Raise more money than what is reasonably needed to test the waters or amass funds (seed money) to be used after candidacy is established;
- Conduct activities over a protracted period of time or shortly before the election; or
- Take action to qualify for the ballot.”
In addition to this, Federal Regulation (11 CFR 100.7(b)(ii) and (ii)(B) provide
- “Examples of activities that indicate that an individual has decided to become a candidate include, but are not limited to:…
(B) The individual raises funds in excess of what could reasonably be expected to be used for exploratory activities or undertakes activities designed to amass campaign funds that would be spent after he or she becomes a candidate.”
If a person ‘performs activities that indicate that (he) has decided to become a candidate’, and if that person raises more than $5000, the person must register with the FEC as a candidate. He must also start filing FEC spending reports on a schedule set by the Federal Election Commission. The formal ‘declaration of candidacy’ with press conferences and advertising only appears on the above list in the positive sense: If you authorize statements that refer to you as a candidate, then you are a candidate. A Press Conference in which you say ‘I am a candidate for President’ makes you a candidate. Your silence does not make you a non-candidate.
After the 2000 election, the FEC removed this possible ambiguity in their rules. If you have raised more than $5000, you are legally a candidate. Under this clarification of existing rules, Browne would have become a candidate required to file in 1997.
When did Browne become a candidate? The Browne campaign built up gradually, from letters in late 1996 to a full-blown, albeit low-budget, Presidential campaign in 2000. From the beginning, it was obvious to many readers that Browne intended to run for President, at least if his preconditions could be met.
Under several of the FEC standards Browne appears to have become a candidate for President long before he filed with the FEC. Let us compare actions of the Browne campaign with the standards for becoming a candidate:
