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As the 2016 campaign unfolds, Hillary Rodham Clinton will benefit from one rapid-response team working out of a war room in her New York headquarters – and another one working out of a "super PAC" in Washington.
Jeb Bush has hired a campaign manager, press aides and fundraisers – yet insists he is not running for president, just exploring the possibility of maybe running.
And Sen. Marco Rubio’s chance of winning his party’s nomination may hinge on the support of an "independent" group financed by a billionaire who has bankrolled Rubio’s past campaigns, paid his salary teaching at a university and employed his wife.
With striking speed, the 2016 contenders are exploiting loopholes and regulatory gray areas to transform the way presidential campaigns are organized and paid for.
Their "campaigns" are in practice intricate constellations of political committees, super PACs and tax-exempt groups, engineered to avoid fundraising restrictions imposed on candidates and their parties after the Watergate scandal.
Major costs of each candidate’s White House bid, from television advertising to opposition research to policy development, are now being shifted to legally independent organizations that can accept unlimited contributions from wealthy individuals, corporations and labor unions.
In this new world, campaigns are not campaigns. And candidates are not actually candidates. Though they sometimes forget it.
"I am running for president in 2016," Bush said during a speech in Nevada last week, before quickly amending himself.
"If I run," clarified Bush, whose political operation has already raised tens of millions of dollars – just in case.
Much rides on this apparent distinction. Because of it, Bush and several other contenders have delayed registering their campaigns with the Federal Election Commission, even as they travel the country, meet with voters, attend candidate forums and ask donors for money. That allows them – or so their representatives argue – to personally raise money for and coordinate spending with super PACs.
By law, a campaign and an independent group cannot coordinate their activities. But since there is no campaign, the representatives argue, there is nothing for the groups to illegally coordinate with.
Not everyone agrees. In March, the Campaign Legal Center and Democracy 21, two groups that favor stricter enforcement of campaign regulations, filed complaints with the election commission alleging that Bush; Gov. Scott Walker of Wisconsin; Rick Santorum, the former senator from Pennsylvania; and Martin O’Malley, the former Maryland governor, all met the legal definition of being a candidate and were raising tens of millions of dollars in violation of federal rules.
Bush’s comment in Nevada was "a slip of the mask, not a slip of the tongue," said Paul S. Ryan, a senior counsel at the Campaign Legal Center. "The rules apply to you as soon as you start spending money to determine whether you will run. Simply denying that you’re a candidate doesn’t get you around these campaign finance laws."
No potential candidate has been more aggressive in using the new model than Bush. In recent months, his advisers have created a traditional political action committee – the kind that can accept contributions of only a few thousand dollars per donor – along with a super PAC that can take unlimited contributions and is expected to handle the bulk of the advertising on Bush’s behalf during the primaries. There is also a nonprofit organization, based in Arkansas, that can raise unlimited contributions and is not required to disclose its donors.
All share some variation of the name "Right to Rise," and Bush has headlined fundraisers for the groups, even putting his name on invitations to more than 300 donors who attended a Right to Rise conference in Miami in April.
Technically, however, the super PAC is controlled by a Republican campaign lawyer in Washington. The regular PAC is run by a Florida accountant who has also prepared Bush’s taxes. (Bush is merely the PAC’s "honorary chairman.") And the nonprofit group is controlled by a former Bush aide who is widely described as the head of Bush’s policy team, but who has said the nonprofit will merely be "engaged in policy generation that is consistent with Governor Bush’s optimistic, conservative message."
The non-campaigns reject the idea that their non-candidates are doing anything wrong.
"Right to Rise PAC and Honorary Chairman Jeb Bush are fully complying with the law and FEC precedent in all of our activities," said Tim Miller, who is often described in news accounts as a Bush spokesman but is technically only a consultant to the Right to Rise PAC.
If there is little risk to candidates in pushing the envelope, the benefits are substantial. Outsourcing campaign expenses to a super PAC, for example, allows would-be presidents to avoid the kind of cash-flow problems that can doom their bids even before the first contests in Iowa and New Hampshire.
Traditionally, a candidate who waited too long to hire a campaign staff risked losing all the best talent to rival candidates. Hire too early, and the campaign’s payroll costs quickly balloon, burning through contributions that are capped at $2,700 per donor.
Now candidates set up super PACs and other vehicles before entering the race and fill their bank accounts with six- and seven-figure checks from wealthy supporters. Those groups, in turn, can employ the candidate’s campaign staff-in-waiting.
Walker’s operation, for example, has hired advisers to handle fundraising, Christian conservative outreach, polling and more. These advisers are not working for his campaign, which does not yet exist. Instead, all are on the payroll of a tax-exempt organization, Our American Revival, for which Walker has already raised more than $5 million.
"Governor Walker does not sit on OAR’s board or otherwise control it," said AshLee Strong, a spokeswoman for the group. "He is simply working with us to advance a big, bold conservative reform agenda across the country."
The outsourcing even extends to the daily work of "rapid-response," or reacting to criticisms in the news media or from other candidates.
When a Washington Post fact-checker sought clarification from the Republican campaign of Carly Fiorina about claims she had made about her business career, he was directed to an independent super PAC for some of the answers. The name of the super PAC: Carly for America.
"The super PAC has just been very vocal in defending her, so I thought that they’d be good to talk to," explained Fiorina’s spokeswoman, Sarah Isgur Flores. Flores works for the campaign, which is registered as Carly for President.
Campaign lawyers in both parties say their efforts to circumvent the candidate contribution limits, however suspect they may appear, are fully consistent with existing laws and regulations. And to some extent, the model being pioneered in 2016 is merely a culmination of piecemeal efforts undertaken in past campaigns
Richard L. Hasen, a professor and campaign finance expert at the University of California, Irvine, School of Law, said it had become hard even for him to know what is legal anymore.
"You see some of these things and you have to do a double take; things we thought were established as red lines are no longer red lines," Hasen said in an interview. "It’s all a mess."
That extends to the rules that govern what candidates can do after they formally enter the race. Each cycle brings new tactics for candidates to collaborate with independent groups while trying to steer clear of illegal "coordination."
In 2012, aides to the Republican candidate Mitt Romney were wary of acknowledging that he attended donor gatherings for a super PAC backing his campaign. This time, there is less sensitivity. Bush, other Republicans and Clinton will all be attending donor events organized by super PACs. (Their attendance is legal so long as someone else asks for the money.)
And they are openly courting the donors who will finance the groups: Rubio frequently speaks with Norman Braman, who has said he and Rubio are "close personal friends." Braman, a billionaire auto dealer who was a major contributor to Rubio’s past campaigns, helped cover the cost of his teaching job at Florida International University and employed his wife to advise the Braman family’s philanthropic foundation, has pledged at least $10 million to a pro-Rubio super PAC.
Supporters of Clinton announced the creation last week of a new super PAC, Correct the Record, that would serve as a communications "war room" and coordinate directly with Clinton’s campaign.
Federal law prohibits a candidate from controlling super PACs, and such groups cannot coordinate expenditures such as paid advertisements.
But Adrienne Watson, a spokeswoman for the super PAC, said the coordination restriction would not apply because Correct the Record’s defense of Clinton would be built around material posted on the group’s own website, not paid media. Watson also ventured a further distinction that she said would keep Correct the Record on the right side of the law: The group will collaborate with Clinton’s campaign, but will not be controlled by it. "While Correct the Record can legally coordinate with the Clinton campaign, the campaign will not be telling us what to do," she said.
