Fred Thompson has not become a candidate but he is already on the brink of being a respondent in an FEC enforcement proceeding.  This is one way, not the one he had in mind, of testing the waters—finding out what he can expect from a Presidential candidacy.  Lane Hudson, a blogger, has asked the FEC to investigate Thompson for failing to register and report as a candidate, for pretending to consider a candidacy when he has made up his mind to establish one.

     Hudson matches the rules to what we know of Thompson’s intentions from how he has organized his exploratory effort and what he has said about it.  To Hudson, there seems little doubt, and he is able to cite on his behalf the “red flag” spotted by Larry Noble, an expert and formerly General Counsel to the FEC:  Thompson’s operation chose to raise money for the general election, setting it aside in an account reserved for that purpose, which seems not altogether consistent with the decision facing him of entering the primary.  But Thompson has a very good lawyer, former FEC Chair Michael Toner, who is sure to have a reason, if not a wholly convincing one, why general election fundraising is a sensible contingency plan and not a dead give-away on Thompson’s true current intentions.

     Being thorough, Hudson raises each and every issue that comes to mind, and here, surprisingly, he chooses to question payments made for internet services.  As noted here previously, the Thompson story keeps getting framed in part as a bit of skullduggery accomplished through use of the Internet.  It would be better to keep the Internet out of it:  it is just the opening that some pushing for more active Internet regulation are looking for.

     Whatever the merits of the complaint, Thompson’s behavior indicates to observers with a reformist bent that the testing the waters rules should be tightened.  This is one conclusion to be drawn.  Another is that rules might be tossed out altogether.  It is not clear why an individual testing the waters should escape public disclosure to the FEC, which is the only advantage to seizing on the allowances of the rule and maintaining this “exploratory” posture.

     Should the pre-candidate wish to defer a final decision, or the announcement of one, public reporting is not inconsistent with the political imperative.  The committee can be named an “exploratory” committee; the candidate can say at every turn that she is not a candidate; she can submit sworn affidavits on the point or submit to polygraphs.  But the money raised for this purpose would be disclosed.  And now that candidates like Thompson interpret the IRS rules to compel disclosure under tax law, not much is gained by avoiding disclosure to one agency while reporting to another.

     One objection might be that if an individual is just exploring a campaign, then the dangers of corruption, or its appearance, is attenuated; and there is no reason to force disclosure if, in the end, the exploratory phase closes with a decision not to run.  But this argument was given up long ago when the FEC decided that exploratory efforts must be funded under the same financing controls—contribution limits and source restrictions—that full-fledged candidates have to live by.  If those restrictions apply, it is not a manifest injustice to require disclosure as well, and it certainly makes for a neat consistency. 

     Finally, the FEC would be relieved of the need to inquire into what people really intended, by standards which raise in application other questions.  For example, how much money is appropriately raised for an exploratory effort, or how long this effort should be allowed to last, seems beyond a government agency’s natural capacities to determine.

     Everybody could find something to acclaim in the abolition of this rule.  Disclosure as a policy would be further advanced.  Useless agency investigative activity would be eliminated.  Silly political behavior would be made unnecessary: politicians would be spared the need to utter coy gibberish like “I can’t say I have made up my mind, but I can say that there is a good chance, and how much I can’t say, that you will be seeing more of me in the future.”  

     To the delight of reformers, the law would be made tighter; and, as some consolation to deregulationists, it would, by this change, also make more sense, and the improvement would have been achieved through removing at least one rule from the books.

Bob Bauer