Last week the Federal Election Commission (FEC) took incremental steps toward defining the rules for those considering becoming a candidate and how candidates interact with Super PACs. FEC AO 2015-09 (Senate Majority PAC and House Majority PAC).  As expected, the agency could not reach consensus on most of the legal issues raised, but it did provide some marginally useful guidance, much of it a reaffirmation of its existing regulations and prior decisional law.

Here are the most salient things the agency said.

  • Individuals who are “testing the waters” to decide if they should run for federal office must still comply with the FEC’s rules requiring the use of federally permissible funds. This seems to preclude “testing the waters” Super PACs or 501(c)(4) organizations.
  • You become a “candidate” when you decide that you are going to run. It is this personal decision, and not the formal filing of papers with the FEC, that makes you a “candidate.”
  • There is no limit to how long you can think about running. You can “test the waters” for months or years, so long as you remain truly undecided about whether to run.
  • “I meant what I said and I said what I meant.” D. Seuss, Horton Hatches the Egg. If you publicly tell people you are running, the FEC will assume you mean it.
  • Telling the press the date you will announce your candidacy is good evidence you have decided to run.
  • Individuals who are “agents” of a candidate’s campaign for fundraising purposes can also raise money for multicandidate Super PACs, so long as they don’t do so on behalf of the candidate. The FEC could not agree on whether the same rule would apply to “agents” who fundraise for single candidate Super PACs.
  • Potentially the most significant part of the opinion was a sanctioning of “small room” fundraising events for Super PACs. There is no minimum number of attendees necessary for an event to qualify under the FEC’s rules for when a federal candidate or officeholder can attend an event — including a Super PAC fundraising event — where non-federal funds are raised.

The Commission could not find consensus on the more weighty issues presented, including the role of a potential candidate in setting up a Super PAC that would support her or his campaign, a potential candidate sharing strategic information with a Super PAC, whether there is a dollar threshold for how much a potential candidate can raise while still remaining undecided about whether to run, and whether a potential candidate’s coordination with a Super PAC taints that Super PAC’s spending after the person announces his or her candidacy. On these important questions, the agency could provide no guidance on how the law should apply.