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Jeb Bush is stretching the limits of campaign finance law

Jeb Bush at CPAC, February 2015.
Jeb Bush at CPAC, February 2015.
Alex Wong / Getty

Jeb Bush hasn't yet said that he's running for president, and he's in no rush to do so. Because, as long as he's not a candidate, he'll have an easier time raising the money he thinks his operation will need.

By not making his bid official, Bush can ask for unlimited money for his Super PAC and coordinate with the aides who will run that Super PAC directly — steps that would be off-limits after he formally announces. Indeed, Bush might not announce until the summer for just these reasons, Politico's Alex Isenstadt has reported.

Yet even by the standards of our post-Citizens United era, Bush is stretching the limits of campaign finance law and precedent. For instance, Bush publicly said last December that he had decided to "actively explore" the possibility of running for president. But nearly four months later, he hasn't even yet told the FEC that he's "testing the waters" — because, once he does so, he'll have to abide by a candidate's fundraising limits.

And according to a recent Washington Post report, Bush has given his "tacit endorsement" to a new nonprofit group that will effectively serve as his policy shop — and will be able to keep its donors secret. "This marks the first time" a group like this "has been so embedded in the network of a prospective candidate," Ed O'Keefe and Matea Gold write.

But the odd paradox here is that if Bush were actually in a strong position in the GOP primary, he wouldn't need to be stretching campaign finance laws and precedents so much. If he were better-positioned, he'd be able to announce and the cash would come in regardless. So his behavior here is a sign of weakness, rather than dominance.

Is Jeb exploring a campaign or not? Depends who's asking.

More than 100 days ago, Jeb Bush announced that he'd "decided to actively explore the possibility of running for President of the United States." Yet despite months of big-dollar fundraising for his PAC and Super PAC, Bush not only hasn't launched a campaign yet — he hasn't launched an exploratory committee or even told the FEC he's considering a bid, as candidates who are "testing the waters" are supposed to do.

Why not? According to Politico, it's about money. Right now, Bush — since he's not a federal officeholder or a candidate — can personally ask for huge, unlimited donations for his Super PAC. Once he tells the FEC he's officially considering a candidacy, though, he'd have to cut that out. (His Super PAC would still be able to raise huge amounts, but Bush just wouldn't be able to personally ask for donations of above a few thousand dollars anymore.)

Now, everyone knows Hillary Clinton is considering a campaign, too, and she hasn't declared that to the FEC either. But there's a huge difference — Clinton isn't doing any political fundraising at the moment, but Bush is. So are several other candidates, including Democrat Martin O'Malley and Republicans Scott Walker and Rick Santorum (though they apparently haven't been able to raise anywhere near as much money as Bush). Two advocacy groups, the Campaign Legal Center and Democracy 21, filed FEC complaints for this behavior last week.

Before the complaints were submitted, FEC chair Ann Ravel wrote an op-ed saying that behavior like Bush's is "absurd." Once a certain amount of money is raised, Ravel wrote, politicians "are either exploring a run for office or they are candidates." They "cannot avoid campaign finance laws merely by not calling themselves candidates," she continued.

But it's unclear whether the FEC — which, in recent years, has tended to be paralyzed by divisions between its Democratic and Republican appointees — will be able to step in and enforce Ravel's views.

Bush's team goes even further with its new nonprofit — which, unlike Super PACs, can keep its donors secret

Bush's haziness on whether he's exploring a campaign isn't unique. But his team's founding of a new nonprofit policy shop that can accept secret donations is something that appears to be unprecedented for a major presidential candidate.

As O'Keefe and Gold reported, the group, Right to Rise Policy Solutions, was founded in February by former Walmart executive Bill Simon — who, according to previous reports, has been placed "in charge of assembling" Bush's "policy operation."

Like a Super PAC, Simon's nonprofit can raise unlimited contributions — but there's one huge difference. Super PACs have to disclose their donors and file regularly with the FEC. Nonprofits don't.

The day after the Post's report, Simon did say that he might end up disclosing the names of donors who give to the group. "We believe in transparency, so depending on how this turns out, I believe eventually that'll be the case," he said, but added, "It's hard for me to say at this point."

But the choice of whether or not to reveal the group's donors will be entirely up to Simon. And according to Robert Maguire of the Center for Responsive Politics, the group may not even have to reveal how much money it raised until after the 2016 elections. (Nonprofits that run campaign ads have to at least tell the FEC how much they're spending on them, but Simon says his group won't run any ads.)

As O'Keefe and Gold write, if this move seems to work well for Bush, it's likely to become the new normal for presidential campaigns. If so, the sources of the money flowing through our political system would become more obscure.

These grabs for cash reveals Bush's weakness, not his strength

Overall, though, it seems that Bush's attempts to skirt campaign finance restrictions actually reveal the weaknesses in his nascent bid.

In contrast, Hillary Clinton is in such a dominant position in the Democratic field that she hasn't had to start campaign fundraising. Bush didn't have that advantage. So he's been trying to raise huge amounts of money specifically to deter potential challengers, in what his advisers called a "shock and awe" campaign.

But, as the New York Times' Nick Confessore and Maggie Haberman report, it hasn't worked. Bush has failed to unite the party. He's totally failed to soar ahead in early polls — on average, only about 17 percent of national GOP primary voters say they support him, according to RealClearPolitics. And his main rivals — Scott Walker and Marco Rubio — look formidable.

One key sign of this is, actually,  that Rubio seems to have decided to run in the first place — he's reportedly set to announce next week. It was commonly speculated in DC that, if Bush ran, Rubio would forego a bid, since it would be too tough to compete with his fellow Floridian for donors and supporters. But that's apparently not the case.

If Bush was in a truly dominant position, Rubio likely wouldn't be running, as Jonathan Bernstein argued recently. Indeed, Bernstein provocatively asks whether Bush will turn out to be "the Rudy [Giuliani] of 2016." Back in 2007, the former New York mayor raised the most money of any Republican. But once the voting began in 2008, Giuliani failed to win a single primary or caucus.

Beyond that, Bush could have some trouble raising small donations. These generally tend to go to more ideological candidates who can generate enthusiasm among a party's base. For instance, Sen. Ted Cruz (R-TX) has raised millions in small-dollar contributions in just the eight days since he announced his presidential bid. It seems unlikely that Bush, who is distrusted by many conservatives, would generate similar enthusiasm — so his Super PAC might prove especially important.

Overall, though, Bush has reportedly raised so much already that a lack of funds almost surely won't hurt his campaign. So he might be better served by moving up that planned summer launch — and spending more time trying to solve his electoral problems, rather than financial ones.

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