When Jeb Bush sat down for an interview on “Morning Joe” on Tuesday, he probably did not expect his words to be used to accuse him of a crime. But continuing its mission of protecting democracy by—with just a slight bit of contradiction—making every effort to punish the people participating it, the Campaign Legal Center is on the case. Per usual, Campaign Legal is all bark and no bite, achieving little beyond perhaps a miniscule influence on the election cycle thanks to news coverage of its woof. But their bloodlust, ineffective as it is, deserves rebuke, for if it became actual policy it would draw more from Orwell than any democratic platitude.
Jeb’s alleged admission of a crime came amidst his answer to a question from Willie Geist, who followed up on quotes from Mitt Romney that Jeb is burdened by the legacy of his brother, former president George W. Bush:
Geist: “Do you feel like your brother has weighed on you over the last seven months as you’ve run?”
Bush: “Absolutely not. Look, Mitt Romney is a great guy, and I do consider him a friend. And in that private conversation [in January, 2015] we talked about the campaign ‘cause he was thinking about running. I went out to see him, I wanted him to know that I was all in, and that I had a plan to win this, and I still do. So, my brother, if you did the polling and actually looked at it, he’s probably the most popular president in–amongst Republicans in this country. So, the whole idea that somehow he’s a burden–any mistakes I make, they’re my own. My brother, and my family, I’m honored to be part of that family, I love ‘em dearly, and all the psychobabble that goes along with it, I’ve gotten over it. You guys can meditate on your navels about that, I’m not–”
(Transcribed from clip, emphasis added.) Following up on a complaint it filed nearly a year ago, Campaign Legal believes that Bush failed to register as a candidate or “testing the waters” with the Federal Election Commission long before his official June 15 announcement, and believes Jeb’s words on Tuesday are further proof. According to Paul S. Ryan at Campaign Legal, “[t]hese knowing and willful violations of federal law should be punished to the fullest extent of the law.” This is not just rhetorical flourish: federal campaign finance violations are generally punishable with a civil penalty, but “knowing and willful” violations, where the violator knows the law and consciously decides to break it, may be prosecuted by the Department of Justice and punished with prison time.
Criminal campaign finance cases are rare, and it should stay that way. The trouble here begins not with Jeb Bush or his campaign, and not even with Campaign Legal, but with the law itself. The FEC’s regulations over when a candidate is “testing the waters” or becomes a candidate (and then subject to the rest of the federal campaign finance regime) are hopelessly murky. One cannot knowingly and willfully violate a law when no one (save the FEC’s attorneys and a few confident watchdogs) knows what it means. In a recent advisory opinion, the Commission did not help the situation by affirming that a candidate becomes a candidate “when he or she makes a private determination that he or she will run for federal office.”
With this paradigm, the FEC could spend a lot of time and effort on speech inquisitions. It is bad enough that the agency—with full support of watchdogs like Campaign Legal—uses public statements, particularly pressured interviews with the press, as triggers for investigations and prosecutions. Furthermore, for all the murkiness in its various regulations, the FEC—and, again, the watchdogs—always seem to know exactly what a person really means when they speak, no matter how equivocal the words (“all in” and “I have a plan to win this” are determinations to run? At an important meeting with another guy who’s considering running? Come on.). The final step goes full Orwell: they don’t just know what one says, and what one means, but they know one’s very thoughts.
The result speaks for itself: thanks to a television interview a year after a meeting, when a politician is trying to summon all the bravado he can to salvage a waning campaign, his staff and attorneys will waste time and money responding to a revised complaint with the FEC, and perhaps the Department of Justice as well. It is but another example of watchdogs attacking the democracy they pretend to defend. Thankfully, though the FEC recently affirmed its murky regulations, when it comes to enforcement it is unlikely that a majority of the commissioners will consider Bush’s words (here or anywhere else) as determinative. The DOJ is also unlikely to act. But red tape, inquisitions, and punishments are not unfortunate side effects of campaign finance “reform”; as Campaign Legal makes quite clear, these are the objective.