Lawyers for the Federal Election Commission have concluded that some of the aggressive fund-raising tactics commonly used this campaign season by the candidates and “super PACs” should not be allowed under federal law, setting up what promises to be a heated debate Thursday on the issue between Democratic and Republican commissioners. In the draft of a legal opinion made public on Wednesday, the F.E.C. lawyers concluded that politicians can be bound by fund-raising restrictions even if they insist they have not decided whether to run and were simply “testing the waters” for a possible campaign. A politician cannot get around those restrictions simply by using a super PAC or another organization as a proxy to raise money, the lawyers concluded.
The draft opinion did not examine the activities of any particular candidate. But the issue of politicians’ aggressively “testing the waters” without declaring their candidacies became a contentious one earlier this year; campaign watchdog groups charged that a number of politicians — including the Republicans Jeb Bush, Rick Santorum and Scott Walker and a Democrat, Martin O’Malley — had abused the law, raising many millions of dollars through outside groups before they declared themselves candidates.
The rise of super PACs has become one of the dominant story lines of the 2016 campaign, with Republican candidates in particular using the political committees to raise hundreds of millions of dollars in unlimited contributions from wealthy supporters.